Case 3:07-cv-03455-WHA Document 14 Filed 08/10/2007 Page 1 of 33

1 CECILLIA D. WANG (CSB #187782) LUCAS GUTTENTAG (CSB #90208)
2 AMERICAN CIVIL LIBERTIES UNION FOUNDATION
3 IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street
4 San Francisco, CA 94111 Telephone: (415) 343-0775
5 Facsimile: (415) 395-0950 Email: CWang@aclu.org
6 Attorneys for Plaintiffs-Petitioners
7 *Additional counsel listed on following page

8

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12
ALIA AHMADI, VLADIMIR MIKULICIC, 13 IGOR OVCHINNIKOV, BILJANA
PETROVIC, SERGEI SAPOZHNIKOV, 14 EIMAN TAKY and YAN WANG,

15

Plaintiffs-Petitioners,

Case No. 07-CV-3455-WHA

16

v.

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE

17 MICHAEL CHERTOFF, U.S. Secretary of

RELIEF AND PETITION FOR

Homeland Security; ROBERT S. MUELLER NATURALIZATION PURSUANT TO 8

18 III, Director of the Federal Bureau of

U.S.C. § 1447(B)

Investigation; ALBERTO GONZALES,

19 Attorney General of the United States;

EMILIO T. GONZALEZ, Director, U.S.

CLASS ACTION

20 Department of Homeland Security, Bureau of

Citizenship and Immigration Services; DAVID

21 STILL, District Director, U.S. Department of Judge: Hon. William A. Alsup

Homeland Security, Bureau of Citizenship and

22 Immigration Services, San Francisco District,

23

Defendants-Respondents.

24

25

26

27

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1 Additional counsel:
2 JULIA HARUMI MASS (CSB #189649) ALAN L. SCHLOSSER (CSB #49957)
3 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA
4 39 Drumm Street San Francisco, CA 94111
5 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
6 SIN YEN LING*
7 JOREN LYONS (CSB #203403) ASIAN LAW CAUCUS
8 939 Market Street, Suite 201 San Francisco, CA 94103
9 Telephone: (415) 896-1701 Facsimile: (415) 896-1702
10 *Application for admission pro hac vice forthcoming
11
12 Of counsel:
13 TODD GALLINGER (CSB #238666) COUNCIL ON AMERICAN-ISLAMIC RELATIONS
14 (CAIR) – SAN FRANCISCO BAY AREA 3000 Scott Boulevard, Suite 212
15 Santa Clara, CA 95054 Telephone: (408) 986-9874
16 Facsimile: (408) 986-9875
17
18
19
20
21
22
23
24
25
26
27
28
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1

INTRODUCTION

2

1. Plaintiffs-Petitioners, Alia AHMADI, Vladimir MIKULICIC, Igor

3 OVCHINNIKOV, Biljana PETROVIC, Sergei SAPOZHNIKOV, Eiman TAKY and Yan

4 WANG are all long-time lawful permanent residents of the United States. Each of them has

5 sought to become a citizen of this country by applying for naturalization, having met all statutory

6 requirements. However, despite successfully undergoing their naturalization interviews and

7 clearing criminal background checks more than two years ago, none of the Plaintiffs has received

8 an adjudication from the U.S. Bureau of Citizenship and Immigration Services (“CIS”) on the

9 ground that a background check known as an “FBI name check” is still pending.

10

2. Plaintiffs are among tens of thousands of naturalization applicants throughout the

11 United States who are suffering from systemic delays in the naturalization process caused by the

12 policies, practices and procedures of the Defendants.

13

3. Defendants are officers of CIS and the Federal Bureau of Investigation (“FBI”)

14 and are responsible for the naturalization process, including the FBI name check, which CIS

15 requires for naturalization despite the absence of any promulgated rule or regulation.

16

4. Each named Plaintiff seeks to be naturalized by this Court, as Congress has

17 authorized through the Immigration and Nationality Act. See 8 U.S.C. § 1447(b) (district court

18 may make a determination of a naturalization application if there has been no adjudication within

19 120 days of the date of examination – i.e., the applicant’s naturalization interview); United States

20 v. Hovsepian, 359 F.3d 1144, 1151 (9th Cir. 2004) (en banc). The named Plaintiffs also seek

21 declaratory and injunctive relief on behalf of themselves and the proposed class members, to

22 eliminate the systemic delays that Defendants have caused through their policies, practices and

23 procedures.

24

5. In failing to adjudicate the Plaintiffs’ naturalization applications, Defendant

25 officers of CIS have violated CIS regulations requiring that such applications be adjudicated

26 within 120 days of the initial examination. 8 C.F.R. § 335.3.

27

6. In addition, Defendant officers of both CIS and the FBI have engaged in

28 unreasonable and extraordinary delay in adjudicating Plaintiffs’ naturalization applications, in
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1 violation of the Administrative Procedures Act, 5 U.S.C. §§ 555, 706, and the Due Process

2 Clause of the Fifth Amendment.

3

7. Defendants’ rationale for CIS’s unreasonable naturalization delays – that the

4 delays are required to complete FBI name checks – highlights an independent violation of the

5 Administrative Procedures Act: Defendants’ failure to follow the notice and comment

6 requirements of 5 U.S.C. § 553. CIS has promulgated no regulations concerning an FBI name

7 check, but nonetheless has imposed the current version of the FBI name check as a requirement

8 for over four years – without any deadlines for completion of the checks. In contrast,

9 immigration regulations do provide for criminal records checks based on Plaintiffs’ fingerprints

10 and biographical data. Each of the Plaintiffs has passed those criminal background checks.

11 Because Defendants’ addition of the FBI name check constitutes a substantive rule and causes

12 undue burden and prejudice to Plaintiffs and other members of the proposed class, the public

13 should have been provided notice and an opportunity to comment prior to its implementation.

14

8. CIS’s own ombudsman has criticized the rampant delays in the processing of

15 naturalization applications. In an annual report released in June 2007, the CIS Ombudsman

16 concluded: “FBI name checks, one of several security screening tools used by USCIS, continue

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

18 reduction efforts, and may not achieve their intended national security benefits. FBI name

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

20 benefits. The problem of long-pending FBI name checks cases worsened during the reporting

21 period [of June 2006 to June 2007].” CIS Ombudsman, Annual Report 2007, at 37 (emphasis in

22 original), available at http://www.dhs.gov/xabout/structure/gc_1183751418157.shtm.

23

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

24 Nation their home. They seek to pledge their allegiance to their adopted country and to

25 participate fully in U.S. society as citizens. Each of the Plaintiffs has met the statutory

26 requirements to become a U.S. citizen, and in some cases they have sought relief through

27 requests to members of Congress and through formal and informal inquiries with the

28 government. Nonetheless, each of the Plaintiffs has been stymied in his or her efforts by the
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1 unreasonable and extraordinary delay of the Defendants.

2

10. As a result of the Defendants’ failure to process naturalization applications within

3 a reasonable time, under timelines set by Congress, Plaintiffs are unable to participate in civic

4 society by voting and jury service. Plaintiffs also are unable expeditiously to petition for lawful

5 permanent residency immediate relatives living abroad including, in some cases, their spouses

6 and children. Plaintiffs also are unable to participate freely as U.S. citizens in the Visa Waiver

7 Program or to travel abroad and to return to the United States without fear of exclusion. One of

8 the named Plaintiffs is blocked in his professional advancement because of the delay in

9 naturalization.

10

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

11 also declaratory and injunctive relief as representatives of a class of other individuals who have

12 satisfied all statutory requirements for naturalization and are suffering similar unreasonable

13 delays. Plaintiffs ask the Court to declare that the Defendants are violating the due process rights

14 of Plaintiffs and the proposed class, as well as the Administrative Procedures Act and the

15 immigration laws and regulations, in failing to complete all background checks necessary for

16 adjudication of naturalization applications within a reasonable time as established by Congress

17 and by CIS’s own regulations.

18

JURISDICTION AND VENUE

19

12. This Court has subject matter jurisdiction over this matter pursuant to 8 U.S.C. §

20 1447(b) (district court jurisdiction to adjudicate delayed naturalization applications), 5 U.S.C. §

21 702 (Administrative Procedures Act), 28 U.S.C. § 1361 (writ of mandamus), and 28 U.S.C. §

22 1331 (federal question).

23

13. Venue is proper in the Northern District of California pursuant to 28 U.S.C. §§

24 1391(e). Plaintiffs sue the Defendants in their official capacities as officers and employees of the

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

26 this District, where the Plaintiffs’ applications for naturalization are pending before the San

27 Francisco District of the CIS. In addition, venue is proper in this District pursuant to 8 U.S.C. §

28 1447(b), which provides that a petition for de novo review of a naturalization application shall be
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1 filed in the district in which the applicant resides. All of the Plaintiffs live within this District.

2

3

PARTIES

4

14. Plaintiff Alia Ahmadi is a citizen of Afghanistan. She is a lawful permanent

5 resident of the United States and lives in Union City, California. She applied for naturalization

6 with CIS and passed her naturalization examination in May 2003. Her naturalization application

7 has not been adjudicated.

8

15. Plaintiff Vladimir Mikulicic was born in former Yugoslavia and is a citizen of

9 Croatia. He is a lawful permanent resident of the United States and lives in Lafayette,

10 California. He applied for naturalization with CIS and passed his naturalization examination on

11 or about December 1, 2004. His naturalization application has not been adjudicated.

12

16. Plaintiff Igor Ovchinnikov is a citizen of Ukraine. He is a lawful permanent

13 resident of the United States and lives in San Francisco, California. He applied for naturalization

14 with CIS and passed his naturalization examination in February 2004. His naturalization

15 application has not been adjudicated.

16

17. Plaintiff Biljana Petrovic is a native of former Yugoslavia and a naturalized

17 citizen of Canada. She is a lawful permanent resident of the United States and lives in Los Altos,

18 California. She applied for naturalization with CIS and passed her naturalization examination in

19 February 2004. Her naturalization application has not been adjudicated.

20

18. Plaintiff Sergei Sapozhnikov is a native of the former Soviet Union and a citizen

21 of Russia. He is a lawful permanent resident of the United States and lives in Walnut Creek,

22 California. He applied for naturalization with CIS and passed his naturalization examination in

23 July 2004. His naturalization application has not been adjudicated.

24

19. Plaintiff Eiman Taky is a citizen of Egypt. She is a lawful permanent resident of

25 the United States and lives in San Jose, California. She applied for naturalization with CIS and

26 passed her naturalization examination in March 2005. Her naturalization application has not

27 been adjudicated.

28

20. Plaintiff Yan Wang is a citizen of China. She is a lawful permanent resident of

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1 the United States, and she resides in San Francisco, California. She applied for naturalization

2 with CIS and passed her naturalization examination in January 2004. Her naturalization

3 application has not been adjudicated.

4

21. Defendant Michael Chertoff is the U.S. Secretary of Homeland Security and has

5 ultimate responsibility for CIS, a subunit of the Department of Homeland Security. Mr. Chertoff

6 is ultimately responsible for the administration of all immigration and naturalization laws,

7 including the processing and determination of applications for naturalization. He is sued in his

8 official capacity.

9

22. Defendant Robert S. Mueller III is the Director of the Federal Bureau of

10 Investigation. Mr. Mueller is ultimately responsible for the processing of FBI name checks

11 submitted by CIS to the FBI during the naturalization process. Mr. Mueller is sued in his official

12 capacity.

13

23. Defendant Alberto Gonzales is the Attorney General of the United States. He is

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

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

16 sued in his official capacity.

17

24. Respondent Emilio T. Gonzalez is the Director of CIS. Mr. Gonzalez is

18 responsible for the processing and determination of all applications for naturalization submitted

19 to CIS. He is sued in his official capacity.

20

25. Respondent David Still is the District Director for the San Francisco District of

21 the Bureau of Citizenship and Immigration Services (“CIS”), U.S. Department of Homeland

22 Security. Mr. Still is responsible for applications for naturalization pending in the San Francisco

23 District. Mr. Still is sued in his official capacity.

24

LEGAL FRAMEWORK

25 General Requirements for Naturalization

26

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

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

28 as naturalization.
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1

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

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

3 period of physical presence in the United States; and good moral character. 8 U.S.C. § 1423,

4 1427(a).

5

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

6 8 U.S.C. § 1445. CIS is the agency that is responsible for adjudicating naturalization

7 applications.

8

29. Once an application is submitted, CIS conducts a criminal background

9 investigation of each naturalization applicant. 8 U.S.C. § 1446(a); 8 C.F.R. § 335.1.

10

30. After a criminal background investigation is completed, CIS schedules a

11 naturalization examination, at which an applicant meets with a CIS examiner who is authorized

12 to ask questions and take testimony. The CIS examiner must determine whether to grant or deny

13 the naturalization application. 8 U.S.C. § 1446(d).

14

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

15 requirements for naturalization. 8 C.F.R. § 335.3. Naturalization is not a discretionary benefit,

16 but a right upon satisfaction of statutory requirements.

17

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

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

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

20

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

21 examination, the applicant may seek de novo review of the application by a district court. 8

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

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

24 2004), and it may naturalize the applicant. 8 U.S.C. § 1447(b).

25

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

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

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

28 Ceremony (July 10, 2001), available at http://www.whitehouse.gov/news/releases/2001/07/print
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1 20010710-1.html (urging immigration agencies to adopt standard of six-month processing time

2 for applications for immigration benefits).

3 Pre-Naturalization Background Checks

4

35. Under 8 U.S.C. § 335.2, CIS should not schedule the “initial examination” (i.e.,

5 the naturalization interview) until the agency has received “a definitive response from the [FBI]

6 that a full criminal background check” has been completed. The regulation defines a “definitive

7 response” as one of the following: (1) FBI confirmation that the applicant “does not have an

8 administrative or criminal record; (2) FBI confirmation that the applicant does have such a

9 record; or (3) FBI confirmation that the applicant’s fingerprint cards “have been determined

10 unclassifiable for the purpose of conducting a criminal background check and have been

11 rejected.” 8 U.S.C. § 335.2(b). Thus, 8 C.F.R. § 335.2(b) contemplates that the “criminal

12 background check” required by regulation is based upon fingerprint records, and is not a “name

13 check.” The FBI fingerprint check is run against criminal records showing arrests, criminal

14 charges not leading to convictions, and criminal convictions.

15

36. Nonetheless, CIS runs two name-based background checks on each naturalization

16 applicant. First, CIS runs each applicant’s name against the Interagency Border Inspection

17 System (“IBIS”), a centralized records system combining information on “national security risks,

18 public safety issues and other law enforcement concerns” from multiple law enforcement and

19 intelligence agencies. Second, in 1998, CIS instituted the FBI name check. As originally

20 implemented in 1998, the FBI name check ran a naturalization applicant’s name against a

21 database containing the names of persons who are or were the subjects of an FBI investigation.

22

37. In 2002, without giving public notice and an opportunity for public comment, CIS

23 drastically expanded the scope of the FBI name check, so that an applicant’s name would be

24 checked against not only the names of investigation subjects, but also other names that are

25 merely mentioned in FBI files.

26

38. As expanded in 2002, the FBI name check requirement is implemented in such a

27 manner that it is highly likely that an applicant may be identified erroneously as a person “of

28 interest” to the FBI, thereby delaying adjudication of the naturalization application, even though
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1 the applicant has committed no crimes, does not pose any kind of security risk, and has never

2 been a suspect in any investigation. For example, the name check may result in a “hit” when the

3 applicant’s name is mentioned in FBI records because he has been an innocent witness or victim

4 of a crime, has undergone an employment-related security clearance in the past, or has assisted

5 the FBI in an investigation. Thus, since 2002, the FBI name check has not been implemented in

6 a manner that is calculated effectively to uncover national security risks, criminal conduct, or

7 other wrongdoing.

8

39. The FBI name check procedure is also highly likely to result in false positive

9 results because the FBI runs not only a naturalization applicant’s actual name, but also various

10 alternate spellings and permutations of the applicant’s given and family names.

11

40. Plaintiffs are informed and believe that CIS does not adjudicate applications for

12 naturalization until it receives a completed FBI name check. Neither CIS nor the FBI imposes

13 any time limits for completion of FBI name checks. As a result of their policies, practices and

14 procedures, including their failure to require FBI name checks to be completed in a reasonable

15 time period, Defendants are responsible for systemic, years-long delays in adjudicating tens of

16 thousands of naturalization applications nationwide, including those submitted by Plaintiffs.

17

41. Although Defendants have asserted that the FBI name checks are necessary for

18 national security, there is no justification for delays in the FBI name check process. Delays in

19 the FBI name check process do not serve the interest of national security. Indeed, as the CIS

20 Ombudsman has reported, “the current USCIS name check policy may increase the risk to

21 national security by prolonging the time a potential criminal or terrorist remains in the country.”

22 CIS Ombudsman, Annual Report 2006 at 25 (emphasis added), available at

23 http://www.dhs.gov/xlibrary/assets/CISOmbudsman_AnnualReport_2006.pdf. In his most

24 recent annual report, the CIS Ombudsman expressed his “agree[ment] with the assessment of

25 many case workers and supervisors at USCIS field offices and service centers that the FBI name

26 check process has limited value to public safety or national security, especially because in almost

27 every case the applicant is in the United States during the name check process, living or working

28 without restriction.” CIS Ombudsman, Annual Report 2007 at 40.
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1

42. Upon information and belief, CIS has not reported any instance of a security

2 threat discovered through an FBI name check that was not also disclosed through criminal

3 background checks such as the fingerprint check and IBIS database check. The CIS

4 Ombudsman has questioned CIS’s claims that the FBI name check provides information that is

5 not otherwise available through other, existing background checks in the naturalization process.

6 In his 2007 annual report, the CIS Ombudsman states: “It is unclear how many of the FBI name

7 check ‘responses’ also were revealed by one or more of the other security checks conducted for

8 the [naturalization] applications. To date, the Ombudsman has been unable to ascertain from

9 USCIS the total number of actual problem cases that the agency discovered exclusively as a

10 result of the FBI name check. The Ombudsman understands that most, if not all, of the problem

11 cases which would result in an eventual denial of benefits also can be revealed by the other more

12 efficient, automated criminal and security checks that USCIS initiates.” CIS Ombudsman,

13 Annual Report 2007, at 41.

14

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

15 policy or practice of delaying naturalization examinations until after the FBI name check is

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

17 occur prior to the examination, rather than after the examination. Upon information and belief,

18 the April 2006 policy change has resulted in delayed scheduling of the naturalization

19 examination for thousands of applicants. CIS has stated that a purpose of the policy change was

20 to discourage litigation under 8 U.S.C. § 1447(b), which gives district courts jurisdiction to

21 adjudicate applications when CIS has failed to act within 120 days of the examination.

22

FACTS

23 Plaintiffs

24

44. Alia Ahmadi is a 73-year-old native and citizen of Afghanistan. She came to the

25 United States as a lawful permanent resident in November 1986, through a petition by her son

26 Basheer Ahmadi, a U.S. citizen. Ms. Ahmadi lives in Union City, California, with one of her

27 daughters. Ms. Ahmadi has six adult children. Five of her children are U.S. citizens and one is a

28 lawful permanent resident of the United States. Ms. Ahmadi also has 13 grandchildren, all U.S.
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1 citizens.

2

45. In October 2002, Ms. Ahmadi applied for citizenship and successfully completed

3 her naturalization interview and criminal background checks in May 2003. She meets all other

4 statutory requirements for naturalization. At the end of the interview, the CIS officer told Ms.

5 Ahmadi that she had passed her examination and would receive her oath notice shortly.

6

46. Approximately three to four months after successfully passing her naturalization

7 examination, Ms. Ahmadi contacted CIS because she had not received her oath notice. A CIS

8 employee told Ms. Ahmadi that her application was still pending. Ms. Ahmadi has followed up

9 with further contacts with CIS by telephone and in person. Each time, CIS officers have

10 informed her that her naturalization application is still pending due to an FBI name check. She

11 also has had to re-submit her fingerprints as her application has been pending so long that CIS

12 informed her that her original fingerprint card “expired.” Ms. Ahmadi’s children also contacted

13 their representatives in Congress for assistance. Representative Pete Stark made an inquiry to

14 CIS, which responded that a name check was pending.

15

47. Although CIS informed Ms. Ahmadi that her naturalization application has not

16 been adjudicated because her FBI name check is pending, Plaintiffs are informed and believe

17 that in fact the FBI did complete Ms. Ahmadi’s name check on or about October 13, 2005.

18 Nonetheless, CIS has failed to adjudicate the application to date.

19

48. Ms. Ahmadi has suffered harm from the delay of her naturalization. One of her

20 daughters lives outside of the U.S. part-time. Because it is difficult for citizens of Afghanistan to

21 obtain visas for foreign travel, she has sometimes been deterred from visiting her daughter and

22 grandchildren while they are abroad. Ms. Ahmadi is 73 years old and the anxiety surrounding

23 the delay in the granting of her citizenship has put extreme pressure on her already frail health.

24

49. Vladimir Mikulicic is a 61-year-old native of former Yugoslavia and citizen of

25 Croatia. Having previously visited the United States several times, he came on a tourist visa in

26 1991 to visit his sister in San Francisco and to ski in Colorado. While in the United States, he

27 decided to enroll in an English language course and changed his visa status accordingly, with the

28 assistance of counsel. During Mr. Mikulicic’s visit to the United States, the civil war in the
12
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1 former Yugoslavia escalated. As a result of a previous conflict with a Croatian nationalist

2 official, Mr. Mikulicic feared that he would be in danger if he returned to Yugoslavia, and he

3 applied for asylum through counsel. In 1994, Mr. Mikulicic began dating his sister’s coworker,

4 Suzanne Craft, a U.S. citizen. They married in 1996. Mr. Mikulicic and his wife applied for

5 adjustment of his status and he became a lawful permanent resident in or about September 1996.

6

50. Mr. Mikulicic and his wife live in Lafayette, California. He is an engineer and is

7 employed by the Parsons Corporation as a Ports and Harbors Operational Manager.

8

51. In or about May 2004, Mr. Mikulicic applied for citizenship. He successfully

9 completed his criminal background checks and passed his naturalization interview on or about

10 December 1, 2004. Mr. Mikulicic meets all statutory requirements for naturalization. At the

11 time of the naturalization interview, a CIS officer told Mr. Mikulicic that he had passed the

12 examination, but that the agency would have to wait for a response from the FBI before Mr.

13 Mikulicic would receive his oath notice.

14

52. During the pendency of his naturalization application, Mr. Mikulicic has made

15 numerous inquiries of CIS about the delay. Beginning six months after his interview, he has

16 made numerous inquiries of CIS by telephone. CIS has responded by informing him that his

17 background checks are still pending. In addition, Mr. Mikulicic and his wife have twice

18 requested assistance from the office of Senator Dianne Feinstein. In response to inquiries from

19 Senator Feinstein’s staff, CIS stated that Mr. Mikulcic’s name check is still pending. Mr.

20 Mikulicic also telephoned his local FBI office to inquire about the delay of his FBI name check,

21 and was told to be patient as the FBI is overwhelmed with pending name checks.

22

53. Mr. Mikulicic is suffering serious prejudice from the delay of his naturalization.

23 He is employed by a Pasadena-based engineering firm, Parsons Corporation, as a Ports and

24 Harbors Operational Manager. Because he is not a U.S. citizen, he is precluded from obtaining

25 certain security clearances that are necessary for some aspects of his job. As a result, he has had

26 several temporary gaps in his employment with Parsons. In addition, Mr. Mikulicic has had to

27 forgo job assignments that would require him to stay outside the United States for extended

28 periods, so that he can maintain his lawful permanent resident status and meet the physical
13
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1 presence requirement for naturalization. These restrictions on Mr. Mikulicic’s work

2 opportunities also affect his salary and opportunities for advancement.

3

54. Igor Ovchinnikov is a 43-year-old native of the former Soviet Union and citizen

4 of Ukraine. He first came to the United States in 1989 on a student visa as part of an exchange

5 program at Willamette University in Salem, Oregon, and again from 1992-94 as an Edmund

6 Muskie Fellow at the business school at Ohio State University. Mr. Ovchinnikov immigrated to

7 the United States as a lawful permanent resident through the diversity visa program in January

8 1998.

9

55. Mr. Ovchinnikov lives with his wife and teenaged daughter, who are both

10 naturalized U.S. citizens. Mr. Ovchinnikov holds an M.B.A. degree from Ohio State University

11 and has previously worked as a management consultant for IBM and Price Waterhouse. He is

12 currently working at a nonprofit organization in the Mission District of San Francisco, teaching

13 computer skills as part of a job training program. He also works part-time as a licensed real

14 estate broker.

15

56. In or about May 2003, Mr. Ovchinnikov applied for citizenship. He successfully

16 completed his criminal background checks and passed his naturalization interview on or about

17 February 9, 2004. Mr. Ovchinnikov meets all statutory requirements for naturalization. At the

18 time of his interview, a CIS officer told him that his application was complete but that his case

19 required “further supervisory review.”

20

57. During the course of the long delay in adjudication of Mr. Ovchinnikov’s

21 naturalization application, CIS directed him to reappear for fingerprinting twice, in or about June

22 2003 and in July 2005. On information and belief, CIS commonly makes such requests of

23 delayed applicants because it regularly purges its records of fingerprint cards once they have

24 been in CIS’s system for a certain period of time.

25

58. During the pendency of his naturalization application, Mr. Ovchinnikov has made

26 numerous inquiries of CIS about the delay. In response, CIS has informed him that his

27 application is still pending because of “background” or “security” checks. Mr. Ovchinnikov also

28 has submitted a written request to CIS for expediting of his application, to no avail. Mr.
14
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1 Ovchinnikov also has made requests for assistance to the CIS Ombudsman and to U.S.

2 Representative Nancy Pelosi.

3

59. Mr. Ovchinnikov is suffering serious prejudice from the delay of his application.

4 He would like to petition for his mother, who lives alone in Ukraine, to join him in the United

5 States. Because Mr. Ovchinnikov is not yet a U.S. citizen, he has been unable to do so. See 8

6 U.S.C. § 1151(b)(2)(A)(i) (providing that children, spouses, and parents of U.S. citizens are not

7 subject to worldwide limitations on numbers of visas issued); 8 U.S.C. § 1153(a) (setting forth

8 preferences for issuance of visas to unmarried sons or daughters of U.S. citizens, spouses and

9 unmarried sons or daughters of lawful permanent residents, married sons and daughters of U.S.

10 citizens, and brothers or sisters of U.S. citizens, in that order). Mr. Ovchinnikov has not seen his

11 mother since he immigrated to the United States in 1998.

12

60. Biljana Petrovic is a 54-year-old native of former Yugoslavia and naturalized

13 citizen of Canada. Ms. Petrovic has been a lawful permanent resident for 19 years. She entered

14 the United States in June 23, 1988, upon the petition of her husband, Ihab Abu-Hakima, who was

15 then a lawful permanent resident and has since naturalized. Ms. Petrovic and her husband have

16 two children, who are both U.S. citizens. Ms. Petrovic is full-time homemaker and cares for her

17 two children, while her husband works as the Chief Executive Officer of a small start-up wireless

18 company in Silicon Valley. Ms. Petrovic is an active member of her local community. She is a

19 member of the YMCA and the Parent-Teacher Association at Mountain View High School.

20 From 1999 to 2004, Ms. Petrovic was an active member of the Peninsula Children’s Auxiliary,

21 which provides services to autistic children.

22

61. In or about April 2003, Ms. Petrovic submitted her citizenship application. She

23 passed criminal background checks and successfully completed her naturalization interview on

24 or about February 13, 2004. At the end of the interview, the CIS officer informed Ms. Petrovic

25 that she had passed the tests for English and U.S. history and civics. CIS directed her to attend

26 another interview on July 15, 2004, but then later sent a notice that the second interview was

27 canceled. Ms. Petrovic meets all statutory requirements for naturalization. Since passing her

28 interview, she has made at least five inquiries to CIS by mail. She also has twice visited the CIS
15
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1 office in San Jose in person and was told that her case was pending with the FBI. On October

2 24, 2005, a CIS officer informed Ms. Petrovic’s former counsel that her application was still

3 pending because of the background and name check. In October 2004, Ms. Petrovic contacted

4 Senator Dianne Feinstein, and she received a response on November 12, 2004, stating that the

5 FBI name check is still pending. In April 2006, Ms. Petrovic contacted Representative Anna G.

6 Eshoo in an effort to expedite her citizenship application. In April 28, 2006, she received a

7 response from the staff of Representative Eshoo confirming the name check delay and that a

8 request to expedite the application has been made with CIS.

9

62. On or about October 10, 2006, Ms. Petrovic submitted a request to the FBI under

10 the Freedom of Information Act, seeking information about the delay of her name check. By

11 letter dated February 5, 2007, the FBI responded with the notation: “No arrest record, CJIS

12 Division FBI.”

13

63. Ms. Petrovic has suffered severe prejudice from the delay of her naturalization.

14 Ms. Petrovic’s parents are 80 and 81 years old and living in Canada. She is their only child. Her

15 mother is beginning to suffer from the early stages of dementia, and Ms. Petrovic fears that her

16 parents will soon need her full-time attention and assistance. Because of the delay in her

17 naturalization, Ms. Petrovic has been unable to petition for her parents to join her in the United

18 States. This circumstance has caused her a great deal of anguish, as she has two children and

19 will not be able to care for both her children and her parents, while the latter are still living in

20 Canada.

21

64. Sergei Yuri Sapozhnikov is a 46-year old native of the former Soviet Union and

22 citizen of Russia. He came to the United States in August 1991 on an H1-B employment visa

23 and became a lawful permanent resident through the sponsorship of his former employer, Tech

24 Met Traders. He has been working in Silicon Valley for Sun Microsystems as a computer

25 engineer for approximately seven years. Mr. Sapozhnikov’s wife, a professor at California State

26 University at Hayward, is a lawful permanent resident. The Sapozhnikovs have three children –

27 two of whom are U.S. citizens and one of whom is a lawful permanent resident. Mr.

28 Sapozhnikov’s wife and younger son are also facing delays of their citizenship applications.
16
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1

65. In or about February 2004, Mr. Sapozhnikov submitted his citizenship

2 application. He successfully passed his criminal background checks and successfully passed his

3 naturalization examination on or about July 22, 2004. Mr. Sapozhnikov meets all statutory

4 requirements for naturalization. At the end of his examination, the CIS officer informed Mr.

5 Sapozhnikov that he passed the tests for English and U.S. history and government. However, the

6 CIS officer gave him written notice stating that a decision cannot be made on his application

7 because background checks have not been completed. Mr. Sapozhnikov has been waiting for his

8 oath notice for approximately three years.

9

66. Mr. Sapozhnikov has suffered serious prejudice from the delay of his

10 naturalization. Mr. Sapozhnikov would like to petition for his 70-year-old father and his sister to

11 live with him in the United States. Since the death of Mr. Sapozhnikov’s mother in January

12 2005, his father has been living alone in Russia. The burden of providing care to his father has

13 shifted to his sister even though she also has responsibility for her own family. Mr. Sapozhnikov

14 seeks to naturalize so that he can reunite with his family, and fulfill his responsibilities as a son

15 in the event that his father should become ill.

16

67. Eiman Taky is a 44-year-old native and citizen of Egypt. She first came to the

17 United States on an F-1 student visa in January 1987 and became a lawful permanent resident in

18 May 1993 following her marriage to a lawful permanent resident. Ms. Taky, who was divorced

19 from her husband in 2001, lives with her teenaged children, who are both U.S. citizens. Ms.

20 Taky trained as a dentist in her home country and now works as a dental hygienist in the Bay

21 Area.

22

68. In August 2004, Ms. Taky applied for citizenship. She successfully completed

23 her criminal background checks and passed her naturalization interview on or about March 15,

24 2005. Ms. Taky meets all statutory requirements for naturalization. At the time of her interview,

25 a CIS officer told her that her application was complete but for an FBI name check.

26

69. To date, CIS has failed to adjudicate Ms. Taky’s naturalization application. In an

27 effort to obtain a decision, Ms. Taky retained a private immigration attorney who made inquiries

28 with CIS and FBI. The government’s only response to the inquiries was that Ms. Taky’s FBI
17
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1 name check was still pending.

2

70. During the course of the long delay in adjudication of Ms. Taky’s naturalization

3 application, CIS directed her to reappear for fingerprinting in June 2006. On information and

4 belief, CIS commonly makes such requests of delayed applicants because it regularly purges its

5 records of fingerprint cards once they have been in CIS’s system for a certain period of time.

6

71. Ms. Taky is suffering serious prejudice from the delay of her application. Her

7 elderly parents live in Egypt and she has been unable to petition for them to join her in the

8 United States because she is not a U.S. citizen. See 8 U.S.C. § 1151(b)(2)(A)(i) (providing that

9 children, spouses, and parents of U.S. citizens are not subject to worldwide limitations on

10 numbers of visas issued); 8 U.S.C. § 1153(a) (setting forth preferences for issuance of visas to

11 unmarried sons or daughters of U.S. citizens, spouses and unmarried sons or daughters of lawful

12 permanent residents, married sons and daughters of U.S. citizens, and brothers or sisters of U.S.

13 citizens, in that order). Ms. Taky’s elderly mother is currently serving as the sole caretaker for

14 Ms. Taky’s father, even though both parents are in poor health. Ms. Taky would like to bring

15 her parents to the United States so that she can care for them in their old age and ill health.

16

72. Yan Wang is a 36-year old native and citizen of China. She came to the United

17 States on a K-1 fiancee visa in February 1999 and became a lawful permanent resident on July

18 2000. Ms. Wang and her husband, a U.S. citizen, live in San Francisco, California. Ms. Wang is

19 currently attending San Francisco City College part-time. She also works full-time for the City

20 of San Francisco providing home care for disabled persons.

21

73. In May 2003, Ms. Wang applied for citizenship and successfully completed her

22 naturalization interview and criminal background checks in January 2004. She meets all other

23 statutory requirements for naturalization. At the end of the interview, a CIS officer told Ms.

24 Wang that she passed her examination and would receive her oath shortly.

25

74. Approximately four months after successfully passing her naturalization

26 examination, Ms. Wang contacted CIS because she had not received her oath notice. CIS

27 informed her that the application is pending because of a name check. Ms. Wang has made

28 approximately eight to nine inquiries with CIS in the course of the last few years, and each time,
18
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1 she was informed that the FBI name check was not complete.

2

75. Plaintiffs are informed and believe that CIS submitted Ms. Wang’s FBI name

3 check request to the FBI on or about May 15, 2003. Despite the passage of more than four years,

4 the FBI has failed to complete Ms. Wang’s name check to date.

5

76. Ms. Wang has suffered harm from the delay of her naturalization. Her ailing

6 father lives in China and she wishes to spend time with him. As a citizen, she would be able to

7 petition for lawful permanent resident status for her father so that she can care for him. See 8

8 U.S.C. § 1151(b)(2)(A)(i) (providing that children, spouses, and parents of U.S. citizens are not

9 subject to worldwide limitations on numbers of visas issued); 8 U.S.C. § 1153(a) (setting forth

10 preferences for issuance of visas to unmarried sons or daughters of U.S. citizens, spouses and

11 unmarried sons or daughters of lawful permanent residents, married sons and daughters of U.S.

12 citizens, and brothers or sisters of U.S. citizens, in that order).

13 Defendants’ Policies and Practices

14

77. Plaintiffs are informed and believe that Defendants Still, Emilio Gonzalez and

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

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

17 examinations, because of unreasonable delays in the processing of FBI name checks.

18

78. Plaintiffs are informed and believe that Defendants Still, Emilio Gonzalez and

19 Chertoff have a policy, pattern, and practice of unlawfully withholding and unreasonably

20 delaying the adjudication of applications for naturalization of the proposed plaintiff class,

21 because of unreasonable delays in the processing of FBI name checks.

22

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

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

24 completion of FBI name checks, with the full knowledge that CIS requires the completion of

25 such FBI name checks for adjudication of applications for naturalization of the proposed plaintiff

26 class.

27

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

28 practice of failing to set reasonable deadlines for completing FBI name checks and taking all the
19
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1 other reasonable steps necessary to complete the adjudication of applications for naturalization of

2 the proposed plaintiff class.

3

81. Plaintiffs are informed and believe that Defendants Still, Emilio Gonzalez and

4 Chertoff have a policy, pattern and practice of requiring FBI name checks for adjudication of

5 applications for naturalization of the proposed plaintiff class, despite having no statutory or

6 regulatory authorization for such FBI name checks.

7

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

8 mechanisms to identify or to track the number and status of naturalization cases in which

9 applicants satisfy all eligibility criteria, have passed naturalization interviews, and are awaiting

10 adjudication solely on the basis of FBI name checks. In addition, CIS and FBI do not have any

11 policies or practices in place to ensure final adjudication of those naturalization applications.

12

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

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

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

15 more than 120 days after their naturalization examinations. In addition, CIS and FBI do not have

16 any policies or practices in place to ensure final adjudication of those naturalization applications.

17

84. Plaintiffs are informed and believe that Defendants Still, Emilio Gonzalez and

18 Chertoff implemented the requirement of FBI name checks for naturalization without giving

19 notice to the public and allowing a period for public comment. The Administrative Procedures

20 Act requires such notice and comment because the FBI name check requirement is a substantive

21 change in prior CIS policy and because the requirement has an adverse effect on individuals by

22 causing a delay in adjudication of their naturalization applications.

23

85. As a result of the Defendants’ policies, practices, actions and omissions, members

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

25 rights and benefits of U.S. citizenship for more than 120 days since they passed their

26 naturalization examinations.

27 Prejudice Suffered By Applicants With Delayed Cases

28

86. The named Plaintiffs and other members of the proposed class suffer concrete

20
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1 harms from the unreasonable delays caused by Defendants’ policies and practices.

2

87. Delays in naturalization can prevent applicants from conferring citizenship or

3 lawful permanent status on their immediate family members. For example, delays can cause a

4 citizenship applicant to lose the opportunity to transmit her new nationality to a minor child. If a

5 parent naturalizes before her child turns 18, the child may automatically gain derivative

6 citizenship if the child is living in the United States in the parent’s custody and is also a

7 permanent resident. 8 U.S.C. § 1431. Thus, if a naturalization application is delayed for so long

8 that a minor child reaches the age of 18, the applicant’s child will lose the opportunity for

9 automatic derivative citizenship. In addition, as compared to a lawful permanent resident, a U.S.

10 citizen has a far greater ability to petition for the immigration of immediate relatives to the

11 United States. See 8 U.S.C. § 1151(b)(2) (spouses, children and parents of U.S. citizen are

12 “immediate relatives” generally not subject to worldwide limitations on number of immigrant

13 visas); 8 U.S.C. § 1153 (setting forth priority list for issuance of visas to family-sponsored

14 immigrants).

15

88. Delays in naturalization can cause applicants to be separated from their children

16 living in the United States if the child does not otherwise have permanent status and reaches the

17 age of majority during the pendency of the naturalization application. See, e.g., Alhamedi v.

18 Gonzales, No. 07 Civ. 2541, 2007 WL 1573935 at *2 (S.D.N.Y. May 30, 2007) (noting that

19 applicant’s 20-year-old daughter might be forced to leave her studies in the United States and

20 return to home country if delay were not resolved before her birthday). In other cases, the

21 applicant’s spouse and children may still be living in the home country, and thus delays in

22 naturalization mean delays in family reunification because relatives of lawful permanent

23 residents are subject to visa limitations. 8 U.S.C. § 1153. Many permanent residents report that

24 the years-long separation from a spouse and children is the most agonizing aspect of the delay.

25 See New York University School of Law, Center for Human Rights and Global Justice,

26 Americans on Hold: Profiling, Citizenship and the “War on Terror” (“NYU Report”) at 2, 5, 22,

27 40, available at www.chrgj.org/docs/AOH/AmericansonHoldReport.pdf.

28

89. Naturalization delays result in restrictions on the ability of immigrants to travel

21
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1 freely. Many permanent residents are from countries that do not participate in the Visa Waiver

2 Program, which affords U.S. citizens the ability to make short trips to 26 countries without the

3 need for a visa. See http://travel.state.gov/visa/temp/without/without_1990. html#countries.

4 Many permanent residents who are Muslim, or are perceived to be such, report that they are

5 routinely subjected as non-citizens to intrusive questioning and searches by U.S. government

6 officials while traveling. See NYU Report at 33-34. Thus, naturalization delays have caused

7 many applicants – as well as their immediate family members who may be U.S. citizens – to

8 refrain from travel altogether, even for urgent matters such as illness or death in the family. See

9 NYU Report at 5, 23.

10

90. For many permanent residents, naturalization delays have had a negative impact

11 on their employment. This is particularly true for highly skilled scientists, engineers, and other

12 professional workers, who often have existing FBI records – which trigger “hits” in the FBI

13 name check, although there is no derogatory information – as a result of previous employment-

14 related security checks. U.S. Gov’t Accountability Office, Report to Congressional Requesters,

15 Immigration Benefits: Improvements Needed to Address Backlogs and Ensure Quality of

16 Adjudications (Nov. 2005) at 44-45. These permanent residents often are hampered in their

17 professional advancement because many jobs in their fields are available only to U.S. citizens.

18 This is most often an impediment for white-collar professionals, but other immigrants who aspire

19 to work in law enforcement or the U.S. military are similarly impeded. NYU Report at 24.

20

91. Naturalization delays have blocked the enfranchisement of tens of thousands of

21 longtime permanent residents who wish to join American civic society formally, after years of

22 contributing their work, community involvement, and tax revenues. See NYU Report at 33-23.

23 FBI name check delays have delayed tens of thousands of immigrants from obtaining the right to

24 vote. Nina Bernstein, Backlog Blocks Immigrants Hoping To Vote, N.Y. Times, Oct. 15, 2004,

25 at B1.

26

CLASS ALLEGATIONS

27

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

28 situated pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2). The class, as proposed
22
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1 by Plaintiffs, consists of:

2

All persons who have submitted or will submit applications for naturalization to CIS, and

3

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

4

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

5

examinations.

6

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

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

8 Plaintiffs are aware of dozens of putative class members who are similarly situated to the named

9 Plaintiffs in this District. Plaintiffs are not aware of the exact numbers of putative class members

10 because Defendants are in the best position to identify such persons. The CIS Ombudsman has

11 noted the enormous extent of the naturalization problem, reporting that “[a]s of May 2007,

12 USCIS reported a staggering 329,160 FBI name check cases pending, with approximately 64

13 percent (211,341) of those cases pending more than 90 days and approximately 32 percent

14 (106,738) pending more than one year.” CIS Ombudsman, Annual Report 2007, at 37.

15 According to the CIS Ombudsman, as of June 2007, there were 31,144 FBI name check cases

16 pending more than 33 months. The CIS Ombudsman further reports that from 2006 to 2007, the

17 number of delayed naturalization cases has increased by 93,358. Id.

18

94. The numerosity of the proposed class is further demonstrated by a November

19 2005 report of the CIS Office of Chief Counsel indicating that in the preceding one-year period,

20 there were 1,000 federal lawsuits filed challenging FBI name check delays.

21

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

22 predominate over any questions affecting only the individually named Plaintiffs, including: (1)

23 whether CIS’s failure to adjudicate the applications for naturalization of the proposed plaintiff

24 class within 120 days of the date of naturalization examinations due to delays in FBI name

25 checks violates the Due Process Clause, the Immigration and Nationality Act and implementing

26 regulations, and the Administrative Procedures Act; (2) whether CIS’s imposition of a name

27 check requirement violates the notice and comment provision of the Administrative Procedures

28 Act; (3) whether the FBI’s actions in unlawfully withholding and unreasonably delaying the
23
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1 completion of FBI name checks, with the full knowledge that CIS requires the completion of

2 such FBI name checks for adjudication of applications for naturalization of the proposed plaintiff

3 class, violates the Constitution and laws of the United States, including the Administrative

4 Procedures Act; and (4) whether CIS and the FBI’s failure to set deadlines for completing FBI

5 name checks and failure to take all the other reasonable steps necessary to complete the

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

7 Constitution and laws of the United States, including the Administrative Procedures Act.

8

96. The claims of the named Plaintiffs are typical of the claims of the proposed class.

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

10 adjudicated despite the passage of over 120 days since their naturalization examinations; they

11 have been denied timely completion of FBI name checks which CIS requires for adjudication of

12 their applications; and their applications for naturalization have been unlawfully withheld or

13 unreasonably delayed on the basis of FBI name checks.

14

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

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

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

17 lawful permanent resident status, the inability to travel freely as U.S. citizens, and the harm of

18 having an uncertain status in the country they have made their home and where they have

19 established themselves as part of a community.

20

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

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

22 have no interests antagonistic to other members of the class. The named Plaintiffs are

23 represented by pro bono counsel, including the ACLU Immigrants’ Rights Project, the ACLU of

24 Northern California and the Asian Law Caucus, who have extensive expertise in class action

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

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

27 to the class as a whole.

28
24
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1

DECLARATORY AND INJUNCTIVE RELIEF ALLEGATIONS

2

99. An actual and substantial controversy exists between Plaintiffs and Defendants as

3 to their respective legal rights and duties. Plaintiffs contend that Defendants’ actions violate

4 Plaintiffs’ rights and the rights of proposed class members. Defendants contend the opposite.

5

100. Defendants’ failure to timely process Plaintiffs’ naturalization applications,

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

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

8

101. Based on the foregoing, the Court should grant declaratory and injunctive relief

9 under 28 U.S.C. §§ 1361, 2201, 2202 and 5 U.S.C. § 702.

10

CAUSES OF ACTION

11

COUNT ONE

12

RIGHT TO DE NOVO JUDICIAL DETERMINATION

13

OF APPLICATION FOR NATURALIZATION

14

8 U.S.C. § 1447(B)

15

[By the Named Plaintiffs Against Defendants Still, Emilio Gonzalez and Chertoff]

16

102. The allegations contained in paragraphs 1 through 101 above are repeated and

17 incorporated as though fully set forth herein.

18

103. Because Respondents have failed to adjudicate each named Plaintiff’s

19 naturalization application within 120 days after the date of his or her naturalization examination,

20 each named Plaintiff is entitled to de novo adjudication of his or her naturalization application by

21 this Court under 8 U.S.C. § 1447(b).

22

104. This Court should grant each named Plaintiff’s naturalization application pursuant

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

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

25 and therefore has a right to become a naturalized citizen of the United States.

26

27

28
25
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1

COUNT TWO

2

UNREASONABLE DELAY

3

IN VIOLATION OF THE ADMINISTRATIVE PROCEDURES ACT

4

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

5

105. The allegations contained in paragraphs 1 through 104 above are repeated and

6 incorporated as though fully set forth herein.

7

106. The Administrative Procedure Act requires administrative agencies to conclude

8 matters presented to them “within a reasonable time.” 5 U.S.C. § 555. A district court reviewing

9 agency action may “compel agency action unlawfully withheld or unreasonably delayed.” 5

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

11 found to be: “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

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

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

14 5 U.S.C. § 706(2)(D). “Agency action” includes, in relevant part, “an agency rule, order, license,

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

16

107. The failure of Defendants Still, Emilio Gonzalez and Chertoff to adjudicate the

17 applications for naturalization of the proposed plaintiff class within a reasonable time on the

18 basis of delays in the processing of FBI name checks, in violation of 8 U.S.C. § 1446(d) and 8

19 C.F.R. § 335.3, violates the Administrative Procedures Act, 5 U.S.C. § 555(b); 5 U.S.C. §§

20 706(1), 706(2)(A), 706(2)(C), 706(2)(D).

21

108. The failure of Defendants Alberto Gonzales and Mueller to complete FBI name

22 checks within a reasonable time period, with the full knowledge that CIS requires the completion

23 of such FBI name checks for adjudication of applications for naturalization of the proposed

24 plaintiff class, violates the Administrative Procedures Act, 5 U.S.C. § 555(b); 5 U.S.C. §§

25 706(1), 706(2)(A), 706(2)(C), 706(2)(D).

26

109. Defendants’ failure to set reasonable deadlines for completing FBI name checks,

27 to track the number and status of naturalization cases awaiting final adjudication solely on the

28 basis of FBI name checks, to track the number and status of naturalization cases awaiting final
26
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR NATURALIZATION PURSUANT TO 8 U.S.C. § 1447(B)

Case 3:07-cv-03455-WHA Document 14 Filed 08/10/2007 Page 27 of 33

1 adjudication for more than 120 days after the naturalization examinations, and to take all the

2 other reasonable steps necessary to complete the adjudication of applications for naturalization of

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

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

5 706(2)(D).

6

110. As a result of Defendants’ actions, Plaintiffs and members of the proposed class

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

8 warranted.

9

COUNT THREE

10

FAILURE TO FOLLOW NOTICE-AND-COMMENT REQUIREMENTS OF THE

11

ADMINISTRATIVE PROCEDURES ACT

12

[By the Named Plaintiffs Against Defendants Still, Emilio Gonzalez and Chertoff]

13

111. The allegations contained in paragraphs 1 through 110 above are repeated and

14 incorporated as though fully set forth herein.

15

112. By regulation, CIS is required to conduct a criminal background check before a

16 naturalization application can be granted. 8 C.F.R. § 335.2(b). CIS does conduct or cause to be

17 conducted criminal background checks, including a check of a naturalization applicant’s

18 fingerprints against the FBI’s criminal records, and a check of an applicant’s name against a

19 multi-agency law enforcement database known as the Interagency Border Inspection System

20 (“IBIS”).

21

113. In or about November 2002, CIS implemented an expanded version of a third

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

23 check required by statute and regulation. Unlike the databases searched during the criminal

24 background checks, the expanded FBI name check runs applicants’ names against a database

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

26 of a crime – including innocent witnesses and even crime victims. This added requirement of an

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

28

114. Defendants implemented the expanded FBI name check requirement for

27
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR NATURALIZATION PURSUANT TO 8 U.S.C. § 1447(B)

Case 3:07-cv-03455-WHA Document 14 Filed 08/10/2007 Page 28 of 33

1 naturalization without giving notice and providing a period for public comment, even though the

2 name check requirement has an adverse impact on individuals whose naturalization applications

3 are delayed due to the name check.

4

115. The Administrative Procedures Act requires that administrative agencies provide

5 the public with notice and an opportunity to comment prior to promulgating substantive rules,

6 such as implementation of new requirements for naturalization. 5 U.S.C. § 553.

7

116. Defendants’ failure to provide a notice-and-comment period prior to

8 implementing the FBI name check requirement violates the Administrative Procedures Act, 5

9 U.S.C. § 553.

10

COUNT FOUR

11

VIOLATION OF FIFTH AMENDMENT DUE PROCESS CLAUSE

12

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

13

117. The allegations contained in paragraphs 1 through 116 above are repeated and

14 incorporated as though fully set forth herein.

15

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

16 depriving any person of life, liberty or property without due process of law.

17

119. Plaintiffs have a liberty or property interest in having their naturalization

18 applications decided within a reasonable time period.

19

120. Defendants Still, Emilio Gonzalez and Chertoff have a pattern, practice or policy

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

21 reasonable time period because of delays in FBI name checks, in violation of 8 U.S.C. § 1446(d)

22 and 8 C.F.R. § 335. Defendants Alberto Gonzales and Mueller have a pattern, practice or policy

23 of failing to complete FBI name checks in a reasonably timely manner, with the full knowledge

24 that CIS requires the completion of FBI name checks for adjudication of applications for

25 naturalization of the proposed plaintiff class. Defendants have a pattern, practice or policy of

26 failing to set deadlines for completing FBI name checks and to take all the other reasonable steps

27 necessary to complete the adjudication of applications for naturalization of the proposed plaintiff

28 class, in violation of 8 U.S.C. § 1446(d) and 8 C.F.R. § 335.3. These actions by Defendants
28
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR NATURALIZATION PURSUANT TO 8 U.S.C. § 1447(B)

Case 3:07-cv-03455-WHA Document 14 Filed 08/10/2007 Page 29 of 33

1 violate Plaintiffs’ rights to due process of law.

2

121. As a result of Defendants’ actions, Plaintiffs and members of the proposed class

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

4 warranted.

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
29
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR NATURALIZATION PURSUANT TO 8 U.S.C. § 1447(B)

Case 3:07-cv-03455-WHA Document 14 Filed 08/10/2007 Page 30 of 33

1

PRAYER FOR RELIEF

2

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

3 the following relief:

4

(1)

Assume jurisdiction over the matter;

5

(2)

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

6

(3)

Review de novo and grant the named Plaintiffs’ applications for

7

naturalization, pursuant to 8 U.S.C. § 1447(b);

8

(4)

Order Defendants to promptly adjudicate, in a time period not to exceed

9

90 days, the currently pending applications for naturalization of all

10

members of the proposed class;

11

(5)

Order Defendants to adjudicate, within a reasonable time period not to

12

exceed 180 days from the date of the application date, all applications for

13

naturalization that shall be submitted in the future;

14

(6)

Order that any name checks Defendants choose to conduct shall be

15

completed in a manner that does not delay adjudication of naturalization

16

applications beyond 180 days from the date the application is received by

17

CIS;

18

(7)

Order Defendants to adopt a procedure for identifying naturalization cases

19

awaiting final adjudication based solely on FBI name checks, and for

20

identifying naturalization cases awaiting final adjudication for more than

21

120 days after successful completion of the naturalization examination, or

22

180 days from the date CIS receives the naturalization application;

23

(8)

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

24

Defendants Still, Emilio Gonzalez and Chertoff to adjudicate applications

25

for naturalization within 180 days of the date of the naturalization

26

application is received by CIS; (b) The failure of Defendants Alberto

27

Gonzales and Mueller to complete FBI name checks within a reasonable

28

time; and (c) Defendants’ failures to take all necessary steps to adjudicate

30
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR NATURALIZATION PURSUANT TO 8 U.S.C. § 1447(B)

Case 3:07-cv-03455-WHA Document 14 Filed 08/10/2007 Page 31 of 33

1

applications for naturalization within 180 days of receipt by CIS.

2

(9)

Award reasonable attorney fees and costs pursuant to the Equal Access to

3

Justice Act, 5 U.S.C. § 504, 28 U.S.C. § 2412; and

4

(10)

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

5 Dated: August 10, 2007

Respectfully submitted,

6

CECILLIA D. WANG

LUCAS GUTTENTAG

7

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION

8

IMMIGRANTS’ RIGHTS PROJECT

39 Drumm Street

9

San Francisco, CA 94111

10

JULIA HARUMI MASS

ALAN L. SCHLOSSER

11

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION OF NORTHERN

12

CALIFORNIA

39 Drumm Street

13

San Francisco, CA 94111

14

SIN YEN LING

JOREN LYONS

15

ASIAN LAW CAUCUS

939 Market Street, Suite 201

16

San Francisco, CA 94103

Telephone: (415) 896-1701

17

Facsimile: (415) 896-1702

18

TODD GALLINGER

Of Counsel

19

COUNCIL ON AMERICAN-ISLAMIC

RELATIONS (CAIR) – SAN

20

FRANCISCO BAY AREA

3000 Scott Boulevard, Suite 212

21

Santa Clara, CA 95054

Telephone: (408) 986-9874

22

Facsimile: (408) 986-9875

23

By: _________/s/_______________________

24

CECILLIA D. WANG

25

Attorneys for Plaintiffs

26

27

28
31
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR NATURALIZATION PURSUANT TO 8 U.S.C. § 1447(B)

Case 3:07-cv-03455-WHA Document 14 Filed 08/10/2007 Page 32 of 33

1

CERTIFICATE OF SERVICE

2 I, Cecillia D. Wang, declare as follows:

3

I hereby certify that today I electronically filed the foregoing FIRST AMENDED

4 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR

5 NATURALIZATION PURSUANT TO 8 U.S.C. § 1447 with the Clerk of the Court using the
6 ECF system, which will send notification of such filing to the following email addresses:
7

Alan Lawrence Schlosser

8

American Civil Liberties Union

Via ECF at aschlosser@aclunc.org

Foundation of Northern California 9

Joren Lyons

10

Asian Law Caucus

Via ECF at joren@asianlawcaucus.org

11

Lucas Guttentag

American Civil Liberties Union

12

Immigrants’ Rights Project

Via ECF at lguttentag@aclu.org

13

Julia Harumi Mass

Via ECF

American Civil Liberties Union

at jmass@aclunc.org

14

Foundation of Northern California

15

Edward A. Olsen

United States Attorney’s Office 16

Via ECF at edward.olsen@usdoj.gov

Elizabeth J. Stevens

Via ECF

17

United States Department of Justice

at elizabeth.stevens@usdoj.gov

18

Jeffrey S. Robins

Via ECF

United States Department of Justice

at jeffrey.robins@usdoj.gov

19

20

21

In addition, I hereby certify that on this 10th day of August 2007, true and correct copies

22 of the FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

23 AND PETITION FOR NATURALIZATION PURSUANT TO 8 U.S.C. § 1447 were served by

24 U.S. Mail on the following non-ECF filers:

25

26

Sin Yen Ling Asian Law Caucus

Todd Gallinger Council on American-Islamic Relations

27

939 Market Street, Suite 201

3000 Scott Boulevard, Suite 212

San Francisco, CA 94103

Santa Clara, CA 95054

28

Case 3:07-cv-03455-WHA Document 14 Filed 08/10/2007 Page 33 of 33

1

I declare under penalty of perjury under the laws of the State of California that the above

2 is true and correct.

3

4

Dated: August 10, 2007 San Francisco, California

5

6

_________/s/______________ CECILLIA D. WANG

7

8

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 Case 3:07-cv-03455-WHA Document 15 Filed 08/10/2007 Page 1 of 8

1 CECILLIA D. WANG (CSB #187782) LUCAS GUTTENTAG (CSB #90208)
2 AMERICAN CIVIL LIBERTIES UNION FOUNDATION
3 IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street
4 San Francisco, CA 94111 Telephone: (415) 343-0775
5 Facsimile: (415) 395-0950 Email: CWang@aclu.org
6 Attorneys for Plaintiffs-Petitioners
7 *Additional counsel listed on following page

8

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12
ALIA AHMADI, MIAO LING HUANG, 13 YAN WANG, FU ZHONG,

14

15

v.

Plaintiffs-Petitioners,

Case No. 07-CV-3455-WHA

16 MICHAEL CHERTOFF, U.S. Secretary of

STIPULATION OF DISMISSAL OF

Homeland Security; ROBERT S. MUELLER CLAIMS OF PLAINTIFFS MIAO LING

17 III, Director of the Federal Bureau of

HUANG AND FU ZHONG

Investigation; ALBERTO GONZALES,

18 Attorney General of the United States;

EMILIO T. GONZALEZ, Director, U.S.

19 Department of Homeland Security, Bureau of

Citizenship and Immigration Services; DAVID

20 STILL, District Director, U.S. Department of

Homeland Security, Bureau of Citizenship and

21 Immigration Services, San Francisco District,

22

Defendants-Respondents.

23

24

25

26

27

28

1
STIPULATION OF DISMISSAL OF CLAIMS OF PLAINTIFFS MIAO LING HUANG AND FU ZHONG CASE NO. 07-CV-3455-WHA

Case 3:07-cv-03455-WHA Document 15 Filed 08/10/2007 Page 2 of 8
1 Additional counsel:
2 JULIA HARUMI MASS (CSB #189649) ALAN L. SCHLOSSER (CSB #49957)
3 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA
4 39 Drumm Street San Francisco, CA 94111
5 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
6 SIN YEN LING*
7 JOREN LYONS (CSB #203403) ASIAN LAW CAUCUS
8 939 Market Street, Suite 201 San Francisco, CA 94103
9 Telephone: (415) 896-1701 Facsimile: (415) 896-1702
10 *Application for admission pro hac vice forthcoming
11
12 Of counsel:
13 TODD GALLINGER (CSB #238666) COUNCIL ON AMERICAN-ISLAMIC RELATIONS
14 (CAIR) – SAN FRANCISCO BAY AREA 3000 Scott Boulevard, Suite 212
15 Santa Clara, CA 95054 Telephone: (408) 986-9874
16 Facsimile: (408) 986-9875
17
18
19
20
21
22
23
24
25
26
27
28
2
STIPULATION OF DISMISSAL OF CLAIMS OF PLAINTIFFS MIAO LING HUANG AND FU ZHONG CASE NO. 07-CV-3455-WHA

Case 3:07-cv-03455-WHA Document 15 Filed 08/10/2007 Page 3 of 8

1 TO THE COURT, ALL PARTIES, AND COUNSEL OF RECORD:

2

The parties hereby stipulate and agree as follows:

3

1. On July 2, 2007, plaintiffs Alia Ahmadi, Miao Ling Huang, Yan Wang and Fu

4 Zhong filed the instant action, seeking their naturalization by the Court pursuant to 8 U.S.C. §

5 1447(b) and declaratory and injunctive relief on behalf of themselves and a proposed class of

6 persons suffering from delays in the naturalization process.

7

2. Prior to the filing of the complaint on July 2, 2007, but unbeknownst to plaintiffs’

8 counsel, the U.S. Citizenship and Immigration Services agency had adjudicated the

9 naturalization applications of plaintiffs Huang and Zhong, and issued notices of naturalization

10 oath ceremony.

11

3. Plaintiffs Huang and Zhong took the oath of citizenship on July 24, 2007, and are

12 now U.S. citizens.

13

4. The claims of plaintiffs Huang and Zhong should therefore be dismissed.

14

5. Defendants stipulate and agree, in settlement of the claims of plaintiffs Huang and

15 Zhong, that the oaths of naturalization taken by plaintiffs Huang and Zhong are valid and

16 effective.

17

18

19

20

21

22

23

24

25

26

27

28

3
STIPULATION OF DISMISSAL OF CLAIMS OF PLAINTIFFS MIAO LING HUANG AND FU ZHONG CASE NO. 07-CV-3455-WHA

Case 3:07-cv-03455-WHA Document 15 Filed 08/10/2007 Page 4 of 8

1 Dated: August 10, 2007 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

Respectfully submitted,
CECILLIA D. WANG LUCAS GUTTENTAG AMERICAN CIVIL LIBERTIES UNION
FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111
JULIA HARUMI MASS ALAN L. SCHLOSSER AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111
SIN YEN LING JOREN LYONS ASIAN LAW CAUCUS 939 Market Street, Suite 201 San Francisco, CA 94103 Telephone: (415) 896-1701 Facsimile: (415) 896-1702
TODD GALLINGER Of Counsel COUNCIL ON AMERICAN-ISLAMIC
RELATIONS (CAIR) – SAN FRANCISCO BAY AREA 3000 Scott Boulevard, Suite 212 Santa Clara, CA 95054 Telephone: (408) 986-9874 Facsimile: (408) 986-9875
By: _______/s/________________________ CECILLIA D. WANG
Attorneys for Plaintiffs-Petitioners

4
STIPULATION OF DISMISSAL OF CLAIMS OF PLAINTIFFS MIAO LING HUANG AND FU ZHONG CASE NO. 07-CV-3455-WHA

Case 3:07-cv-03455-WHA Document 15 Filed 08/10/2007 Page 5 of 8

1 Dated: August 10, 2007
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

SCOTT N. SCHOOLS United States Attorney JOANN W. SWANSON Chief, Civil Division EDWARD A. OLSEN Assistant United States Attorney 450 Golden Gate Avenue, Box 36055 San Francisco, CA 94102
PETER D. KEISLER United States Department of Justice Assistant Attorney General, Civil Division ELIZABETH J. STEVENS Senior Litigation Counsel, Office of Immigration Litigation JEFFREY S. ROBINS Trial Attorney, Office of Immigration Litigation P.O. Box 878, Ben Franklin Station Washington, D.C. 20044
By: _______/s/_________________________ JEFFREY S. ROBINS
Attorneys for Defendants

5
STIPULATION OF DISMISSAL OF CLAIMS OF PLAINTIFFS MIAO LING HUANG AND FU ZHONG CASE NO. 07-CV-3455-WHA

Case 3:07-cv-03455-WHA Document 15 Filed 08/10/2007 Page 6 of 8

1

ORDER

2

Based upon the stipulation of the parties, IT IS HEREBY ORDERED that the claims

3 of plaintiffs Miao Ling Huang and Fu Zhong are hereby DISMISSED pursuant to Federal

4 Rule of Civil Procedure 41(a)(1), on the ground that they have taken valid oaths of

5 naturalization and are U.S. citizens.

6

SO ORDERED.

7 Dated: August ___, 2007

8

9

___________________________________

HON. WILLIAM H. ALSUP

10

UNITED STATES DISTRICT JUDGE

11

12

13

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15

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24

25

26

27

28

Case 3:07-cv-03455-WHA Document 15 Filed 08/10/2007 Page 7 of 8

1

CERTIFICATE OF SERVICE

2 I, Cecillia D. Wang, declare as follows:
3 I hereby certify that today I electronically filed the foregoing STIPULATION OF
4
DISMISSAL OF CLAIMS OF PLAINTIFFS MIAO LING HUANG AND FU ZHONG with the 5

6 Clerk of the Court using the ECF system, which will send notification of such filing to the

7 following email addresses:

8

Alan Lawrence Schlosser

Via ECF

American Civil Liberties Union

at aschlosser@aclunc.org

9

Foundation of Northern California

10

Joren Lyons

Via ECF

Asian Law Caucus

at joren@asianlawcaucus.org

11

Lucas Guttentag

Via ECF

12

American Civil Liberties Union

at lguttentag@aclu.org

Immigrants’ Rights Project

13

Julia Harumi Mass

Via ECF

14

American Civil Liberties Union

at jmass@aclunc.org

Foundation of Northern California

15

Edward A. Olsen

Via ECF

16

United States Attorney’s Office

at edward.olsen@usdoj.gov

17

Elizabeth J. Stevens

Via ECF

United States Department of Justice

at elizabeth.stevens@usdoj.gov

18

Jeffrey S. Robins

Via ECF

19

United States Department of Justice

at jeffrey.robins@usdoj.gov

20

21

22

23

In addition, I hereby certify that on this 10th day of August 2007, true and correct copies

24 of the STIPULATION OF DISMISSAL OF CLAIMS OF PLAINTIFFS MIAO LING HUANG

25 AND FU ZHONG were served by U.S. Mail on the following non-ECF filers:
26

Sin Yen Ling

27

Asian Law Caucus

Todd Gallinger Council on American-Islamic Relations

28

939 Market Street, Suite 201 San Francisco, CA 94103

3000 Scott Boulevard, Suite 212 Santa Clara, CA 95054

Case 3:07-cv-03455-WHA Document 15 Filed 08/10/2007 Page 8 of 8

1

I declare under penalty of perjury under the laws of the State of California that the above

2 is true and correct.

3

4

Dated: August 10, 2007 San Francisco, California

5

6

_________/s/______________ CECILLIA D. WANG

7

8

9

10

11

12

13

14

15

16

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18

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25

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28

 
 Case3:07-cv-03455-WHA Document47 Filed11/15/07 Page1 of 30

1 CECILLIA D. WANG (CSB #187782) LUCAS GUTTENTAG (CSB #90208)
2 AMERICAN CIVIL LIBERTIES UNION FOUNDATION
3 IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street
4 San Francisco, CA 94111 Telephone: (415) 343-0775
5 Facsimile: (415) 395-0950 Email: CWang@aclu.org
6 Attorneys for Plaintiffs-Petitioners
7 *Additional counsel listed on following page

8

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12
ALIA AHMADI, ANGEL GENTCHEV, 13 JIWEI HUANG, IGOR OVCHINNIKOV,
SERGEI SAPOZHNIKOV, and HELGA 14 SCOVAJSA,

15

Plaintiffs-Petitioners,

Case No. 07-CV-3455-WHA

16

v.

SECOND AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE

17 MICHAEL CHERTOFF, U.S. Secretary of

RELIEF AND PETITION FOR

Homeland Security; ROBERT S. MUELLER NATURALIZATION PURSUANT TO 8

18 III, Director of the Federal Bureau of

U.S.C. § 1447(B)

Investigation; MICHAEL MUKASEY,

19 Attorney General of the United States;

EMILIO T. GONZALEZ, Director, U.S.

CLASS ACTION

20 Department of Homeland Security, Bureau of

Citizenship and Immigration Services; DAVID

21 STILL, District Director, U.S. Department of Judge: Hon. William A. Alsup

Homeland Security, Bureau of Citizenship and

22 Immigration Services, San Francisco District,

23

Defendants-Respondents.

24

25

26

27

28
1
SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR NATURALIZATION PURSUANT TO 8 U.S.C. § 1447(B)

Case3:07-cv-03455-WHA Document47 Filed11/15/07 Page2 of 30
1 Additional counsel:
2 JULIA HARUMI MASS (CSB #189649) ALAN L. SCHLOSSER (CSB #49957)
3 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA
4 39 Drumm Street San Francisco, CA 94111
5 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
6 SIN YEN LING*
7 JOREN LYONS (CSB #203403) ASIAN LAW CAUCUS
8 939 Market Street, Suite 201 San Francisco, CA 94103
9 Telephone: (415) 896-1701 Facsimile: (415) 896-1702
10 *Application for admission pro hac vice forthcoming
11
12 Of counsel:
13 TODD GALLINGER (CSB #238666) COUNCIL ON AMERICAN-ISLAMIC RELATIONS
14 (CAIR) – SAN FRANCISCO BAY AREA 3000 Scott Boulevard, Suite 212
15 Santa Clara, CA 95054 Telephone: (408) 986-9874
16 Facsimile: (408) 986-9875
17
18
19
20
21
22
23
24
25
26
27
28
2
SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR NATURALIZATION PURSUANT TO 8 U.S.C. § 1447(B)

Case3:07-cv-03455-WHA Document47 Filed11/15/07 Page3 of 30

1

INTRODUCTION

2

1. Plaintiffs-Petitioners, Alia AHMADI, Angel GENTCHEV, Jiwei HUANG, Igor

3 OVCHINNIKOV, Sergei SAPOZHNIKOV, and Helga SCOVAJSA, are all long-time lawful

4 permanent residents of the United States. Each of them has sought to become a citizen of this

5 country by applying for naturalization, having met all statutory requirements. However, despite

6 successfully undergoing their naturalization interviews and clearing criminal background checks

7 more than two years ago, none of the Plaintiffs has received an adjudication from the U.S.

8 Bureau of Citizenship and Immigration Services (“CIS”) on the ground that a background check

9 known as an “FBI name check” is still pending.

10

2. Plaintiffs are among tens of thousands of naturalization applicants throughout the

11 United States who are suffering from systemic delays in the naturalization process caused by the

12 policies, practices and procedures of the Defendants.

13

3. Defendants are officers of CIS and the Federal Bureau of Investigation (“FBI”)

14 and are responsible for the naturalization process, including the FBI name check, which CIS

15 requires for naturalization despite the absence of any promulgated rule or regulation.

16

4. Each named Plaintiff seeks to be naturalized by this Court, as Congress has

17 authorized through the Immigration and Nationality Act. See 8 U.S.C. § 1447(b) (district court

18 may make a determination of a naturalization application if there has been no adjudication within

19 120 days of the date of examination – i.e., the applicant’s naturalization interview); United States

20 v. Hovsepian, 359 F.3d 1144, 1151 (9th Cir. 2004) (en banc). The named Plaintiffs also seek

21 declaratory and injunctive relief on behalf of themselves and the proposed class members, to

22 eliminate the systemic delays that Defendants have caused through their policies, practices and

23 procedures.

24

5. In failing to adjudicate the Plaintiffs’ naturalization applications, Defendant

25 officers of CIS have violated CIS regulations requiring that such applications be adjudicated

26 within 120 days of the initial examination. 8 C.F.R. § 335.3.

27

6. In addition, Defendant officers of both CIS and the FBI have engaged in

28 unreasonable and extraordinary delay in adjudicating Plaintiffs’ naturalization applications, in
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1 violation of the Administrative Procedures Act, 5 U.S.C. §§ 555, 706, and the Due Process

2 Clause of the Fifth Amendment.

3

7. Defendants’ rationale for CIS’s unreasonable naturalization delays – that the

4 delays are required to complete FBI name checks – highlights an independent violation of the

5 Administrative Procedures Act: Defendants’ failure to follow the notice and comment

6 requirements of 5 U.S.C. § 553. CIS has promulgated no regulations concerning an FBI name

7 check, but nonetheless has imposed the current version of the FBI name check as a requirement

8 for over four years – without any deadlines for completion of the checks. In contrast,

9 immigration regulations do provide for criminal records checks based on Plaintiffs’ fingerprints

10 and biographical data. Each of the Plaintiffs has passed those criminal background checks.

11 Because Defendants’ addition of the FBI name check constitutes a substantive rule and causes

12 undue burden and prejudice to Plaintiffs and other members of the proposed class, the public

13 should have been provided notice and an opportunity to comment prior to its implementation.

14

8. CIS’s own ombudsman has criticized the rampant delays in the processing of

15 naturalization applications. In an annual report released in June 2007, the CIS Ombudsman

16 concluded: “FBI name checks, one of several security screening tools used by USCIS, continue

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

18 reduction efforts, and may not achieve their intended national security benefits. FBI name

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

20 benefits. The problem of long-pending FBI name checks cases worsened during the reporting

21 period [of June 2006 to June 2007].” CIS Ombudsman, Annual Report 2007, at 37 (emphasis in

22 original), available at http://www.dhs.gov/xabout/structure/gc_1183751418157.shtm.

23

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

24 Nation their home. They seek to pledge their allegiance to their adopted country and to

25 participate fully in U.S. society as citizens. Each of the Plaintiffs has met the statutory

26 requirements to become a U.S. citizen, and in some cases they have sought relief through

27 requests to members of Congress and through formal and informal inquiries with the

28 government. Nonetheless, each of the Plaintiffs has been stymied in his or her efforts by the
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1 unreasonable and extraordinary delay of the Defendants.

2

10. As a result of the Defendants’ failure to process naturalization applications within

3 a reasonable time, under timelines set by Congress, Plaintiffs are unable to participate in civic

4 society by voting and jury service. Plaintiffs also are unable expeditiously to petition for lawful

5 permanent residency immediate relatives living abroad including, in some cases, their spouses

6 and children. Plaintiffs also are unable to participate freely as U.S. citizens in the Visa Waiver

7 Program or to travel abroad and to return to the United States without fear of exclusion. One of

8 the named Plaintiffs is blocked in his professional advancement because of the delay in

9 naturalization.

10

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

11 also declaratory and injunctive relief as representatives of a class of other individuals who have

12 satisfied all statutory requirements for naturalization and are suffering similar unreasonable

13 delays. Plaintiffs ask the Court to declare that the Defendants are violating the due process rights

14 of Plaintiffs and the proposed class, as well as the Administrative Procedures Act and the

15 immigration laws and regulations, in failing to complete all background checks necessary for

16 adjudication of naturalization applications within a reasonable time as established by Congress

17 and by CIS’s own regulations.

18

JURISDICTION AND VENUE

19

12. This Court has subject matter jurisdiction over this matter pursuant to 8 U.S.C. §

20 1447(b) (district court jurisdiction to adjudicate delayed naturalization applications), 5 U.S.C. §

21 702 (Administrative Procedures Act), 28 U.S.C. § 1361 (writ of mandamus), and 28 U.S.C. §

22 1331 (federal question).

23

13. Venue is proper in the Northern District of California pursuant to 28 U.S.C. §§

24 1391(e). Plaintiffs sue the Defendants in their official capacities as officers and employees of the

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

26 this District, where the Plaintiffs’ applications for naturalization are pending before the San

27 Francisco District of the CIS. In addition, venue is proper in this District pursuant to 8 U.S.C. §

28 1447(b), which provides that a petition for de novo review of a naturalization application shall be
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1 filed in the district in which the applicant resides. All of the Plaintiffs live within this District.

2

3

PARTIES

4

14. Plaintiff Alia Ahmadi is a citizen of Afghanistan. She is a lawful permanent

5 resident of the United States and lives in Union City, California. She applied for naturalization

6 with CIS and passed her naturalization examination in May 2003. Her naturalization application

7 has not been adjudicated.

8

15. Plaintiff Angel Gentchev is a citizen of Bulgaria. He is a lawful permanent

9 resident of the United States and lives in Fremont, California. He applied for naturalization with

10 CIS and passed his naturalization examination in May 2003. His naturalization application has

11 not been adjudicated.

12

16. Plaintiff Jiwei Huang is a citizen of China. He is a lawful permanent resident of

13 the United States and lives in Fremont, California. He applied for naturalization with CIS and

14 passed his naturalization examination in January 2004. His naturalization application has not

15 been adjudicated.

16

17. Plaintiff Igor Ovchinnikov is a citizen of Ukraine. He is a lawful permanent

17 resident of the United States and lives in San Francisco, California. He applied for naturalization

18 with CIS and passed his naturalization examination in February 2004. His naturalization

19 application has not been adjudicated.

20

18. Plaintiff Sergei Sapozhnikov is a native of the former Soviet Union and a citizen

21 of Russia. He is a lawful permanent resident of the United States and lives in Walnut Creek,

22 California. He applied for naturalization with CIS and passed his naturalization examination in

23 July 2004. His naturalization application has not been adjudicated.

24

19. Plaintiff Helga Scovajsa is a citizen of the Czech Republic. She is a lawful

25 permanent resident of the United States and lives in San Francisco, California. She applied for

26 naturalization with CIS and passed her naturalization examination in November 2004. Her

27 naturalization application has not been adjudicated.

28

20. Defendant Michael Chertoff is the U.S. Secretary of Homeland Security and has

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1 ultimate responsibility for CIS, a subunit of the Department of Homeland Security. Mr. Chertoff

2 is ultimately responsible for the administration of all immigration and naturalization laws,

3 including the processing and determination of applications for naturalization. He is sued in his

4 official capacity.

5

21. Defendant Robert S. Mueller III is the Director of the Federal Bureau of

6 Investigation. Mr. Mueller is ultimately responsible for the processing of FBI name checks

7 submitted by CIS to the FBI during the naturalization process. Mr. Mueller is sued in his official

8 capacity.

9

22. Defendant Michael Mukasey is the Attorney General of the United States. He is

10 the head of the U.S. Department of Justice, which encompasses the FBI. Mr. Mukasey is also

11 jointly responsible with Mr. Chertoff for enforcement of immigration laws. Mr. Mukasey is sued

12 in his official capacity.

13

23. Respondent Emilio T. Gonzalez is the Director of CIS. Mr. Gonzalez is

14 responsible for the processing and determination of all applications for naturalization submitted

15 to CIS. He is sued in his official capacity.

16

24. Respondent David Still is the District Director for the San Francisco District of

17 the Bureau of Citizenship and Immigration Services (“CIS”), U.S. Department of Homeland

18 Security. Mr. Still is responsible for applications for naturalization pending in the San Francisco

19 District. Mr. Still is sued in his official capacity.

20

LEGAL FRAMEWORK

21 General Requirements for Naturalization

22

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

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

24 as naturalization.

25

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

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

27 period of physical presence in the United States; and good moral character. 8 U.S.C. § 1423,

28 1427(a).
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1

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

2 8 U.S.C. § 1445. CIS is the agency that is responsible for adjudicating naturalization

3 applications.

4

28. Once an application is submitted, CIS conducts a criminal background

5 investigation of each naturalization applicant. 8 U.S.C. § 1446(a); 8 C.F.R. § 335.1.

6

29. After a criminal background investigation is completed, CIS schedules a

7 naturalization examination, at which an applicant meets with a CIS examiner who is authorized

8 to ask questions and take testimony. The CIS examiner must determine whether to grant or deny

9 the naturalization application. 8 U.S.C. § 1446(d).

10

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

11 requirements for naturalization. 8 C.F.R. § 335.3. Naturalization is not a discretionary benefit,

12 but a right upon satisfaction of statutory requirements.

13

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

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

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

16

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

17 examination, the applicant may seek de novo review of the application by a district court. 8

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

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

20 2004), and it may naturalize the applicant. 8 U.S.C. § 1447(b).

21

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

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

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

24 Ceremony (July 10, 2001), available at http://www.whitehouse.gov/news/releases/2001/07/print

25 20010710-1.html (urging immigration agencies to adopt standard of six-month processing time

26 for applications for immigration benefits).

27 Pre-Naturalization Background Checks

28

34. Under 8 U.S.C. § 335.2, CIS should not schedule the “initial examination” (i.e.,

8
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1 the naturalization interview) until the agency has received “a definitive response from the [FBI]

2 that a full criminal background check” has been completed. The regulation defines a “definitive

3 response” as one of the following: (1) FBI confirmation that the applicant “does not have an

4 administrative or criminal record; (2) FBI confirmation that the applicant does have such a

5 record; or (3) FBI confirmation that the applicant’s fingerprint cards “have been determined

6 unclassifiable for the purpose of conducting a criminal background check and have been

7 rejected.” 8 U.S.C. § 335.2(b). Thus, 8 C.F.R. § 335.2(b) contemplates that the “criminal

8 background check” required by regulation is based upon fingerprint records, and is not a “name

9 check.” The FBI fingerprint check is run against criminal records showing arrests, criminal

10 charges not leading to convictions, and criminal convictions.

11

35. Nonetheless, CIS runs two name-based background checks on each naturalization

12 applicant. First, CIS runs each applicant’s name against the Interagency Border Inspection

13 System (“IBIS”), a centralized records system combining information on “national security risks,

14 public safety issues and other law enforcement concerns” from multiple law enforcement and

15 intelligence agencies. Second, in 1998, CIS instituted the FBI name check. As originally

16 implemented in 1998, the FBI name check ran a naturalization applicant’s name against a

17 database containing the names of persons who are or were the subjects of an FBI investigation.

18

36. In 2002, without giving public notice and an opportunity for public comment, CIS

19 drastically expanded the scope of the FBI name check, so that an applicant’s name would be

20 checked against not only the names of investigation subjects, but also other names that are

21 merely mentioned in FBI files.

22

37. As expanded in 2002, the FBI name check requirement is implemented in such a

23 manner that it is highly likely that an applicant may be identified erroneously as a person “of

24 interest” to the FBI, thereby delaying adjudication of the naturalization application, even though

25 the applicant has committed no crimes, does not pose any kind of security risk, and has never

26 been a suspect in any investigation. For example, the name check may result in a “hit” when the

27 applicant’s name is mentioned in FBI records because he has been an innocent witness or victim

28 of a crime, has undergone an employment-related security clearance in the past, or has assisted
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1 the FBI in an investigation. Thus, since 2002, the FBI name check has not been implemented in

2 a manner that is calculated effectively to uncover national security risks, criminal conduct, or

3 other wrongdoing.

4

38. The FBI name check procedure is also highly likely to result in false positive

5 results because the FBI runs not only a naturalization applicant’s actual name, but also various

6 alternate spellings and permutations of the applicant’s given and family names.

7

39. Plaintiffs are informed and believe that CIS does not adjudicate applications for

8 naturalization until it receives a completed FBI name check. Neither CIS nor the FBI imposes

9 any time limits for completion of FBI name checks. As a result of their policies, practices and

10 procedures, including their failure to require FBI name checks to be completed in a reasonable

11 time period, Defendants are responsible for systemic, years-long delays in adjudicating tens of

12 thousands of naturalization applications nationwide, including those submitted by Plaintiffs.

13

40. Although Defendants have asserted that the FBI name checks are necessary for

14 national security, there is no justification for delays in the FBI name check process. Delays in

15 the FBI name check process do not serve the interest of national security. Indeed, as the CIS

16 Ombudsman has reported, “the current USCIS name check policy may increase the risk to

17 national security by prolonging the time a potential criminal or terrorist remains in the country.”

18 CIS Ombudsman, Annual Report 2006 at 25 (emphasis added), available at

19 http://www.dhs.gov/xlibrary/assets/CISOmbudsman_AnnualReport_2006.pdf. In his most

20 recent annual report, the CIS Ombudsman expressed his “agree[ment] with the assessment of

21 many case workers and supervisors at USCIS field offices and service centers that the FBI name

22 check process has limited value to public safety or national security, especially because in almost

23 every case the applicant is in the United States during the name check process, living or working

24 without restriction.” CIS Ombudsman, Annual Report 2007 at 40.

25

41. Upon information and belief, CIS has not reported any instance of a security

26 threat discovered through an FBI name check that was not also disclosed through criminal

27 background checks such as the fingerprint check and IBIS database check. The CIS

28 Ombudsman has questioned CIS’s claims that the FBI name check provides information that is
10
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1 not otherwise available through other, existing background checks in the naturalization process.

2 In his 2007 annual report, the CIS Ombudsman states: “It is unclear how many of the FBI name

3 check ‘responses’ also were revealed by one or more of the other security checks conducted for

4 the [naturalization] applications. To date, the Ombudsman has been unable to ascertain from

5 USCIS the total number of actual problem cases that the agency discovered exclusively as a

6 result of the FBI name check. The Ombudsman understands that most, if not all, of the problem

7 cases which would result in an eventual denial of benefits also can be revealed by the other more

8 efficient, automated criminal and security checks that USCIS initiates.” CIS Ombudsman,

9 Annual Report 2007, at 41.

10

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

11 policy or practice of delaying naturalization examinations until after the FBI name check is

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

13 occur prior to the examination, rather than after the examination. Upon information and belief,

14 the April 2006 policy change has resulted in delayed scheduling of the naturalization

15 examination for thousands of applicants. CIS has stated that a purpose of the policy change was

16 to discourage litigation under 8 U.S.C. § 1447(b), which gives district courts jurisdiction to

17 adjudicate applications when CIS has failed to act within 120 days of the examination.

18

FACTS

19 Plaintiffs

20

43. Alia Ahmadi is a 73-year-old native and citizen of Afghanistan. She came to the

21 United States as a lawful permanent resident in November 1986, through a petition by her son

22 Basheer Ahmadi, a U.S. citizen. Ms. Ahmadi lives in Union City, California, with one of her

23 daughters. Ms. Ahmadi has six adult children. Five of her children are U.S. citizens and one is a

24 lawful permanent resident of the United States. Ms. Ahmadi also has 13 grandchildren, all U.S.

25 citizens.

26

44. In October 2002, Ms. Ahmadi applied for citizenship and successfully completed

27 her naturalization interview and criminal background checks in May 2003. She meets all other

28 statutory requirements for naturalization. At the end of the interview, the CIS officer told Ms.
11
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1 Ahmadi that she had passed her examination and would receive her oath notice shortly.

2

45. Approximately three to four months after successfully passing her naturalization

3 examination, Ms. Ahmadi contacted CIS because she had not received her oath notice. A CIS

4 employee told Ms. Ahmadi that her application was still pending. Ms. Ahmadi has followed up

5 with further contacts with CIS by telephone and in person. Each time, CIS officers have

6 informed her that her naturalization application is still pending due to an FBI name check. She

7 also has had to re-submit her fingerprints as her application has been pending so long that CIS

8 informed her that her original fingerprint card “expired.” Ms. Ahmadi’s children also contacted

9 their representatives in Congress for assistance. Representative Pete Stark made an inquiry to

10 CIS, which responded that a name check was pending.

11

46. Although CIS informed Ms. Ahmadi that her naturalization application has not

12 been adjudicated because her FBI name check is pending, Plaintiffs are informed and believe

13 that in fact the FBI did complete Ms. Ahmadi’s name check on or about October 13, 2005.

14 Nonetheless, CIS has failed to adjudicate the application to date.

15

47. Ms. Ahmadi has suffered harm from the delay of her naturalization. One of her

16 daughters lives outside of the U.S. part-time. Because it is difficult for citizens of Afghanistan to

17 obtain visas for foreign travel, she has sometimes been deterred from visiting her daughter and

18 grandchildren while they are abroad. Ms. Ahmadi is 73 years old and the anxiety surrounding

19 the delay in the granting of her citizenship has put extreme pressure on her already frail health.

20

48. Angel Gentchev is a 53-year-old native and citizen of Bulgaria. He came to the

21 United States in or about August 1996 as an H1-B visa holder, sponsored by his then-employer,

22 Computer Products, Inc. He became a lawful permanent resident of the United States in or about

23 October 1997 through the sponsorship of Computer Products, Inc.

24

49. Mr. Gentchev lives in Fremont, California, with his wife, a U.S. citizen, and two

25 daughters, one of whom is a U.S. citizen and the other a lawful permanent resident. Mr.

26 Gentchev is employed as Director of Research and Development at Integration Associates, one

27 of Silicon Valley’s fastest growing semiconductor companies. During his 11 years as a resident

28 of the United States, Mr. Gentchev has worked at many Silicon Valley firms, including Intel and
12
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1 Volterra, Inc.

2

50. In or about October 2002, Mr. Gentchev applied for citizenship. He successfully

3 completed his criminal background checks and passed his naturalization examination in or about

4 May 2003. He meets all other statutory requirements for naturalization. At the end of Mr.

5 Gentchev’s naturalization examination, a CIS officer informed him that he had passed the

6 examination, including the English language and U.S. history and civics tests, but that his

7 application could not be adjudicated because of a pending background check.

8

51. During the pendency of his naturalization application, Mr. Gentchev has made

9 numerous inquiries of CIS about the delay in his naturalization. CIS has responded by informing

10 Mr. Gentchev that background or national security checks are pending. Mr. Gentchev retained a

11 private attorney to assist him in inquiring with CIS, to no avail. Mr. Gentchev also has sought

12 the assistance of U.S. Representatives Pete Stark and Nancy Pelosi and Senator Barbara Boxer.

13 Despite inquiries made by those members of Congress on Mr. Gentchev’s behalf, CIS has failed

14 to adjudicate his application.

15

52. Jiwei Huang is a 44-year-old native and citizen of China. He first came to the

16 United States on an H-4 visa as the spouse of an employment visa holder. He became a lawful

17 permanent resident of the United States on or about October 10, 1994, based upon the petition of

18 his wife.

19

53. Mr. Huang lives in Fremont, California, with his wife and two young children,

20 who are all U.S. citizens. Mr. Huang is employed as a Senior Network Engineer at a major U.S.

21 financial institution and is responsible for information technology systems throughout the firm’s

22 offices around the world.

23

54. In or about June 2003, Mr. Huang applied for citizenship. He successfully

24 completed his criminal background checks and passed his naturalization interview on or about

25 January 30, 2004. Mr. Huang meets all statutory requirements for naturalization. At the time of

26 his interview, a CIS officer told Mr. Huang that his application was complete but could not be

27 adjudicated because a background check was still pending.

28

55. During the pendency of his naturalization application, Mr. Huang has made

13
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1 numerous inquiries about the delay in person and by telephone. In response, CIS has informed

2 him that this application is still pending because of a background check and that there is nothing

3 that CIS can do to resolve the delay.

4

56. Mr. Huang is suffering serious prejudice from the delay of his naturalization

5 application. His employer, a major U.S. financial institution, has requested on several occasions

6 that Mr. Huang travel to foreign countries in order to establish information technology systems

7 in the firm’s international offices. Mr. Huang has been forced to decline those requests because

8 he has been unable to secure visas for such business travel in a timely manner as a Chinese

9 citizen. If Mr. Huang were a U.S. citizen, he would not require a visa to travel to those

10 countries. Thus, as a result of the delay in his naturalization, Mr. Huang’s professional

11 advancement has been hindered and his employer’s projects have been adversely affected.

12

57. Igor Ovchinnikov is a 43-year-old native of the former Soviet Union and citizen

13 of Ukraine. He first came to the United States in 1989 on a student visa as part of an exchange

14 program at Willamette University in Salem, Oregon, and again from 1992-94 as an Edmund

15 Muskie Fellow at the business school at Ohio State University. Mr. Ovchinnikov immigrated to

16 the United States as a lawful permanent resident through the diversity visa program in January

17 1998.

18

58. Mr. Ovchinnikov lives with his wife and teenaged daughter, who are both

19 naturalized U.S. citizens. Mr. Ovchinnikov holds an M.B.A. degree from Ohio State University

20 and has previously worked as a management consultant for IBM and Price Waterhouse. He is

21 currently working at a nonprofit organization in the Mission District of San Francisco, teaching

22 computer skills as part of a job training program. He also works part-time as a licensed real

23 estate broker.

24

59. In or about May 2003, Mr. Ovchinnikov applied for citizenship. He successfully

25 completed his criminal background checks and passed his naturalization interview on or about

26 February 9, 2004. Mr. Ovchinnikov meets all statutory requirements for naturalization. At the

27 time of his interview, a CIS officer told him that his application was complete but that his case

28 required “further supervisory review.”
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1

60. During the course of the long delay in adjudication of Mr. Ovchinnikov’s

2 naturalization application, CIS directed him to reappear for fingerprinting twice, in or about June

3 2003 and in July 2005. On information and belief, CIS commonly makes such requests of

4 delayed applicants because it regularly purges its records of fingerprint cards once they have

5 been in CIS’s system for a certain period of time.

6

61. During the pendency of his naturalization application, Mr. Ovchinnikov has made

7 numerous inquiries of CIS about the delay. In response, CIS has informed him that his

8 application is still pending because of “background” or “security” checks. Mr. Ovchinnikov also

9 has submitted a written request to CIS for expediting of his application, to no avail. Mr.

10 Ovchinnikov also has made requests for assistance to the CIS Ombudsman and to U.S.

11 Representative Nancy Pelosi.

12

62. Mr. Ovchinnikov is suffering serious prejudice from the delay of his application.

13 He would like to petition for his mother, who lives alone in Ukraine, to join him in the United

14 States. Because Mr. Ovchinnikov is not yet a U.S. citizen, he has been unable to do so. See 8

15 U.S.C. § 1151(b)(2)(A)(i) (providing that children, spouses, and parents of U.S. citizens are not

16 subject to worldwide limitations on numbers of visas issued); 8 U.S.C. § 1153(a) (setting forth

17 preferences for issuance of visas to unmarried sons or daughters of U.S. citizens, spouses and

18 unmarried sons or daughters of lawful permanent residents, married sons and daughters of U.S.

19 citizens, and brothers or sisters of U.S. citizens, in that order). Mr. Ovchinnikov has not seen his

20 mother since he immigrated to the United States in 1998.

21

63. Sergei Yuri Sapozhnikov is a 46-year old native of the former Soviet Union and

22 citizen of Russia. He came to the United States in August 1991 on an H1-B employment visa

23 and became a lawful permanent resident through the sponsorship of his former employer, Tech

24 Met Traders. He has been working in Silicon Valley for Sun Microsystems as a computer

25 engineer for approximately seven years. Mr. Sapozhnikov’s wife, a professor at California State

26 University at Hayward, is a lawful permanent resident. The Sapozhnikovs have three children –

27 two of whom are U.S. citizens and one of whom is a lawful permanent resident. Mr.

28 Sapozhnikov’s wife and younger son are also facing delays of their citizenship applications.
15
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1

64. In or about February 2004, Mr. Sapozhnikov submitted his citizenship

2 application. He successfully passed his criminal background checks and successfully passed his

3 naturalization examination on or about July 22, 2004. Mr. Sapozhnikov meets all statutory

4 requirements for naturalization. At the end of his examination, the CIS officer informed Mr.

5 Sapozhnikov that he passed the tests for English and U.S. history and government. However, the

6 CIS officer gave him written notice stating that a decision cannot be made on his application

7 because background checks have not been completed. Mr. Sapozhnikov has been waiting for his

8 oath notice for approximately three years.

9

65. Mr. Sapozhnikov has suffered serious prejudice from the delay of his

10 naturalization. Mr. Sapozhnikov would like to petition for his 70-year-old father and his sister to

11 live with him in the United States. Since the death of Mr. Sapozhnikov’s mother in January

12 2005, his father has been living alone in Russia. The burden of providing care to his father has

13 shifted to his sister even though she also has responsibility for her own family. Mr. Sapozhnikov

14 seeks to naturalize so that he can reunite with his family, and fulfill his responsibilities as a son

15 in the event that his father should become ill.

16

66. Helga Scovajsa is a 68-year-old native of former Czechoslovakia and a citizen of

17 the Czech Republic. She came to the United States as a lawful permanent resident in April 1978,

18 through the petition of her husband of 38 years, Frank Joseph Scovajsa, a U.S. citizen. Ms.

19 Skovajsa lives in San Francisco with her husband. The Scovajsas have an adult daughter who is

20 a U.S. citizen.

21

67. In or about April 2004, Ms. Scovajsa submitted her naturalization application.

22 She successfully passed her criminal background checks and successfully passed her

23 naturalization examination in or about November 2004. Ms. Scovajsa meets all other statutory

24 requirements for naturalization. At the end of her examination, a CIS officer informed Ms.

25 Skovajsa that she had passed the tests for English and U.S. history and government but that

26 background checks were still pending.

27

68. During the pendency of her naturalization application, Ms. Scovajsa has made

28 numerous inquiries of CIS by letter, telephone, and in person. CIS’s only response has been to
16
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1 tell her that the application is pending because of the FBI name check and that CIS can do

2 nothing to resolve the delay.

3

69. Ms. Scovajsa has suffered harm from the delay of her naturalization. She is 68

4 years old and has lived in the United States for almost 30 years. She has suffered extreme

5 anxiety and emotional distress, with a negative impact on her frail health, as a result of the delay.

6 Defendants’ Policies and Practices

7

70. Plaintiffs are informed and believe that Defendants Still, Gonzalez and Chertoff

8 have a policy, pattern, and practice of failing to adjudicate the applications for naturalization of

9 the proposed plaintiff class within 120 days of the date of naturalization examinations, because

10 of unreasonable delays in the processing of FBI name checks.

11

71. Plaintiffs are informed and believe that Defendants Still, Gonzalez and Chertoff

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

13 adjudication of applications for naturalization of the proposed plaintiff class, because of

14 unreasonable delays in the processing of FBI name checks.

15

72. Plaintiffs are informed and believe that Defendants Mueller and Mukasey have a

16 policy, pattern, and practice of unlawfully withholding and unreasonably delaying the

17 completion of FBI name checks, with the full knowledge that CIS requires the completion of

18 such FBI name checks for adjudication of applications for naturalization of the proposed plaintiff

19 class.

20

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

21 practice of failing to set reasonable deadlines for completing FBI name checks and taking all the

22 other reasonable steps necessary to complete the adjudication of applications for naturalization of

23 the proposed plaintiff class.

24

74. Plaintiffs are informed and believe that Defendants Still, Gonzalez and Chertoff

25 have a policy, pattern and practice of requiring FBI name checks for adjudication of applications

26 for naturalization of the proposed plaintiff class, despite having no statutory or regulatory

27 authorization for such FBI name checks.

28

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

17
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1 mechanisms to identify or to track the number and status of naturalization cases in which

2 applicants satisfy all eligibility criteria, have passed naturalization interviews, and are awaiting

3 adjudication solely on the basis of FBI name checks. In addition, CIS and FBI do not have any

4 policies or practices in place to ensure final adjudication of those naturalization applications.

5

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

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

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

8 more than 120 days after their naturalization examinations. In addition, CIS and FBI do not have

9 any policies or practices in place to ensure final adjudication of those naturalization applications.

10

77. Plaintiffs are informed and believe that Defendants Still, Gonzalez and Chertoff

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

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

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

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

15 delay in adjudication of their naturalization applications.

16

78. As a result of the Defendants’ policies, practices, actions and omissions, members

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

18 rights and benefits of U.S. citizenship for more than 120 days since they passed their

19 naturalization examinations.

20 Prejudice Suffered By Applicants With Delayed Cases

21

79. The named Plaintiffs and other members of the proposed class suffer concrete

22 harms from the unreasonable delays caused by Defendants’ policies and practices.

23

80. Delays in naturalization can prevent applicants from conferring citizenship or

24 lawful permanent status on their immediate family members. For example, delays can cause a

25 citizenship applicant to lose the opportunity to transmit her new nationality to a minor child. If a

26 parent naturalizes before her child turns 18, the child may automatically gain derivative

27 citizenship if the child is living in the United States in the parent’s custody and is also a

28 permanent resident. 8 U.S.C. § 1431. Thus, if a naturalization application is delayed for so long
18
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1 that a minor child reaches the age of 18, the applicant’s child will lose the opportunity for

2 automatic derivative citizenship. In addition, as compared to a lawful permanent resident, a U.S.

3 citizen has a far greater ability to petition for the immigration of immediate relatives to the

4 United States. See 8 U.S.C. § 1151(b)(2) (spouses, children and parents of U.S. citizen are

5 “immediate relatives” generally not subject to worldwide limitations on number of immigrant

6 visas); 8 U.S.C. § 1153 (setting forth priority list for issuance of visas to family-sponsored

7 immigrants).

8

81. Delays in naturalization can cause applicants to be separated from their children

9 living in the United States if the child does not otherwise have permanent status and reaches the

10 age of majority during the pendency of the naturalization application. See, e.g., Alhamedi v.

11 Gonzales, No. 07 Civ. 2541, 2007 WL 1573935 at *2 (S.D.N.Y. May 30, 2007) (noting that

12 applicant’s 20-year-old daughter might be forced to leave her studies in the United States and

13 return to home country if delay were not resolved before her birthday). In other cases, the

14 applicant’s spouse and children may still be living in the home country, and thus delays in

15 naturalization mean delays in family reunification because relatives of lawful permanent

16 residents are subject to visa limitations. 8 U.S.C. § 1153. Many permanent residents report that

17 the years-long separation from a spouse and children is the most agonizing aspect of the delay.

18 See New York University School of Law, Center for Human Rights and Global Justice,

19 Americans on Hold: Profiling, Citizenship and the “War on Terror” (“NYU Report”) at 2, 5, 22,

20 40, available at www.chrgj.org/docs/AOH/AmericansonHoldReport.pdf.

21

82. Naturalization delays result in restrictions on the ability of immigrants to travel

22 freely. Many permanent residents are from countries that do not participate in the Visa Waiver

23 Program, which affords U.S. citizens the ability to make short trips to 26 countries without the

24 need for a visa. See http://travel.state.gov/visa/temp/without/without_1990. html#countries.

25 Many permanent residents who are Muslim, or are perceived to be such, report that they are

26 routinely subjected as non-citizens to intrusive questioning and searches by U.S. government

27 officials while traveling. See NYU Report at 33-34. Thus, naturalization delays have caused

28 many applicants – as well as their immediate family members who may be U.S. citizens – to
19
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1 refrain from travel altogether, even for urgent matters such as illness or death in the family. See

2 NYU Report at 5, 23.

3

83. For many permanent residents, naturalization delays have had a negative impact

4 on their employment. This is particularly true for highly skilled scientists, engineers, and other

5 professional workers, who often have existing FBI records – which trigger “hits” in the FBI

6 name check, although there is no derogatory information – as a result of previous employment-

7 related security checks. U.S. Gov’t Accountability Office, Report to Congressional Requesters,

8 Immigration Benefits: Improvements Needed to Address Backlogs and Ensure Quality of

9 Adjudications (Nov. 2005) at 44-45. These permanent residents often are hampered in their

10 professional advancement because many jobs in their fields are available only to U.S. citizens.

11 This is most often an impediment for white-collar professionals, but other immigrants who aspire

12 to work in law enforcement or the U.S. military are similarly impeded. NYU Report at 24.

13

84. Naturalization delays have blocked the enfranchisement of tens of thousands of

14 longtime permanent residents who wish to join American civic society formally, after years of

15 contributing their work, community involvement, and tax revenues. See NYU Report at 33-23.

16 FBI name check delays have delayed tens of thousands of immigrants from obtaining the right to

17 vote. Nina Bernstein, Backlog Blocks Immigrants Hoping To Vote, N.Y. Times, Oct. 15, 2004,

18 at B1.

19

CLASS ALLEGATIONS

20

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

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

22 by Plaintiffs, consists of:

23

All persons who have submitted or will submit applications for naturalization to CIS, and

24

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

25

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

26

examinations.

27

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

28 in that the class is so numerous that joinder of all members is impracticable. Counsel for
20
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1 Plaintiffs are aware of dozens of putative class members who are similarly situated to the named

2 Plaintiffs in this District. Plaintiffs are not aware of the exact numbers of putative class members

3 because Defendants are in the best position to identify such persons. The CIS Ombudsman has

4 noted the enormous extent of the naturalization problem, reporting that “[a]s of May 2007,

5 USCIS reported a staggering 329,160 FBI name check cases pending, with approximately 64

6 percent (211,341) of those cases pending more than 90 days and approximately 32 percent

7 (106,738) pending more than one year.” CIS Ombudsman, Annual Report 2007, at 37.

8 According to the CIS Ombudsman, as of June 2007, there were 31,144 FBI name check cases

9 pending more than 33 months. The CIS Ombudsman further reports that from 2006 to 2007, the

10 number of delayed naturalization cases has increased by 93,358. Id.

11

87. The numerosity of the proposed class is further demonstrated by a November

12 2005 report of the CIS Office of Chief Counsel indicating that in the preceding one-year period,

13 there were 1,000 federal lawsuits filed challenging FBI name check delays.

14

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

15 predominate over any questions affecting only the individually named Plaintiffs, including: (1)

16 whether CIS’s failure to adjudicate the applications for naturalization of the proposed plaintiff

17 class within 120 days of the date of naturalization examinations due to delays in FBI name

18 checks violates the Due Process Clause, the Immigration and Nationality Act and implementing

19 regulations, and the Administrative Procedures Act; (2) whether CIS’s imposition of a name

20 check requirement violates the notice and comment provision of the Administrative Procedures

21 Act; (3) whether the FBI’s actions in unlawfully withholding and unreasonably delaying the

22 completion of FBI name checks, with the full knowledge that CIS requires the completion of

23 such FBI name checks for adjudication of applications for naturalization of the proposed plaintiff

24 class, violates the Constitution and laws of the United States, including the Administrative

25 Procedures Act; and (4) whether CIS and the FBI’s failure to set deadlines for completing FBI

26 name checks and failure to take all the other reasonable steps necessary to complete the

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

28 Constitution and laws of the United States, including the Administrative Procedures Act.
21
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1

89. The claims of the named Plaintiffs are typical of the claims of the proposed class.

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

3 adjudicated despite the passage of over 120 days since their naturalization examinations; they

4 have been denied timely completion of FBI name checks which CIS requires for adjudication of

5 their applications; and their applications for naturalization have been unlawfully withheld or

6 unreasonably delayed on the basis of FBI name checks.

7

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

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

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

10 lawful permanent resident status, the inability to travel freely as U.S. citizens, and the harm of

11 having an uncertain status in the country they have made their home and where they have

12 established themselves as part of a community.

13

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

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

15 have no interests antagonistic to other members of the class. The named Plaintiffs are

16 represented by pro bono counsel, including the ACLU Immigrants’ Rights Project, the ACLU of

17 Northern California and the Asian Law Caucus, who have extensive expertise in class action

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

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

20 to the class as a whole.

21

DECLARATORY AND INJUNCTIVE RELIEF ALLEGATIONS

22

92. An actual and substantial controversy exists between Plaintiffs and Defendants as

23 to their respective legal rights and duties. Plaintiffs contend that Defendants’ actions violate

24 Plaintiffs’ rights and the rights of proposed class members. Defendants contend the opposite.

25

93. Defendants’ failure to timely process Plaintiffs’ naturalization applications,

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

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

28

94. Based on the foregoing, the Court should grant declaratory and injunctive relief

22
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1 under 28 U.S.C. §§ 1361, 2201, 2202 and 5 U.S.C. § 702.

2

CAUSES OF ACTION

3

COUNT ONE

4

RIGHT TO DE NOVO JUDICIAL DETERMINATION

5

OF APPLICATION FOR NATURALIZATION

6

8 U.S.C. § 1447(B)

7

[By the Named Plaintiffs Against Defendants Still, Gonzalez and Chertoff]

8

95. The allegations contained in paragraphs 1 through 101 above are repeated and

9 incorporated as though fully set forth herein.

10

96. Because Respondents have failed to adjudicate each named Plaintiff’s

11 naturalization application within 120 days after the date of his or her naturalization examination,

12 each named Plaintiff is entitled to de novo adjudication of his or her naturalization application by

13 this Court under 8 U.S.C. § 1447(b).

14

97. This Court should grant each named Plaintiff’s naturalization application pursuant

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

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

17 and therefore has a right to become a naturalized citizen of the United States.

18

COUNT TWO

19

UNREASONABLE DELAY

20

IN VIOLATION OF THE ADMINISTRATIVE PROCEDURES ACT

21

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

22

98. The allegations contained in paragraphs 1 through 104 above are repeated and

23 incorporated as though fully set forth herein.

24

99. The Administrative Procedure Act requires administrative agencies to conclude

25 matters presented to them “within a reasonable time.” 5 U.S.C. § 555. A district court reviewing

26 agency action may “compel agency action unlawfully withheld or unreasonably delayed.” 5

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

28 found to be: “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
23
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1 law,” 5 U.S.C. § 706(2)(A); “in excess of statutory jurisdiction, authority, or limitations, or short

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

3 5 U.S.C. § 706(2)(D). “Agency action” includes, in relevant part, “an agency rule, order, license,

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

5

100. The failure of Defendants Still, Gonzalez and Chertoff to adjudicate the

6 applications for naturalization of the proposed plaintiff class within a reasonable time on the

7 basis of delays in the processing of FBI name checks, in violation of 8 U.S.C. § 1446(d) and 8

8 C.F.R. § 335.3, violates the Administrative Procedures Act, 5 U.S.C. § 555(b); 5 U.S.C. §§

9 706(1), 706(2)(A), 706(2)(C), 706(2)(D).

10

101. The failure of Defendants Mukasey and Mueller to complete FBI name checks

11 within a reasonable time period, with the full knowledge that CIS requires the completion of

12 such FBI name checks for adjudication of applications for naturalization of the proposed plaintiff

13 class, violates the Administrative Procedures Act, 5 U.S.C. § 555(b); 5 U.S.C. §§ 706(1),

14 706(2)(A), 706(2)(C), 706(2)(D).

15

102. Defendants’ failure to set reasonable deadlines for completing FBI name checks,

16 to track the number and status of naturalization cases awaiting final adjudication solely on the

17 basis of FBI name checks, to track the number and status of naturalization cases awaiting final

18 adjudication for more than 120 days after the naturalization examinations, and to take all the

19 other reasonable steps necessary to complete the adjudication of applications for naturalization of

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

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

22 706(2)(D).

23

103. As a result of Defendants’ actions, Plaintiffs and members of the proposed class

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

25 warranted.

26

27

28
24
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1

COUNT THREE

2

FAILURE TO FOLLOW NOTICE-AND-COMMENT REQUIREMENTS OF THE

3

ADMINISTRATIVE PROCEDURES ACT

4

[By the Named Plaintiffs Against Defendants Still, Gonzalez and Chertoff]

5

104. The allegations contained in paragraphs 1 through 110 above are repeated and

6 incorporated as though fully set forth herein.

7

105. By regulation, CIS is required to conduct a criminal background check before a

8 naturalization application can be granted. 8 C.F.R. § 335.2(b). CIS does conduct or cause to be

9 conducted criminal background checks, including a check of a naturalization applicant’s

10 fingerprints against the FBI’s criminal records, and a check of an applicant’s name against a

11 multi-agency law enforcement database known as the Interagency Border Inspection System

12 (“IBIS”).

13

106. In or about November 2002, CIS implemented an expanded version of a third

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

15 check required by statute and regulation. Unlike the databases searched during the criminal

16 background checks, the expanded FBI name check runs applicants’ names against a database

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

18 of a crime – including innocent witnesses and even crime victims. This added requirement of an

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

20

107. Defendants implemented the expanded FBI name check requirement for

21 naturalization without giving notice and providing a period for public comment, even though the

22 name check requirement has an adverse impact on individuals whose naturalization applications

23 are delayed due to the name check.

24

108. The Administrative Procedures Act requires that administrative agencies provide

25 the public with notice and an opportunity to comment prior to promulgating substantive rules,

26 such as implementation of new requirements for naturalization. 5 U.S.C. § 553.

27

109. Defendants’ failure to provide a notice-and-comment period prior to

28 implementing the FBI name check requirement violates the Administrative Procedures Act, 5
25
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1 U.S.C. § 553.

2

COUNT FOUR

3

VIOLATION OF FIFTH AMENDMENT DUE PROCESS CLAUSE

4

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

5

110. The allegations contained in paragraphs 1 through 116 above are repeated and

6 incorporated as though fully set forth herein.

7

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

8 depriving any person of life, liberty or property without due process of law.

9

112. Plaintiffs have a liberty or property interest in having their naturalization

10 applications decided within a reasonable time period.

11

113. Defendants Still, Gonzalez and Chertoff have a pattern, practice or policy of

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

13 reasonable time period because of delays in FBI name checks, in violation of 8 U.S.C. § 1446(d)

14 and 8 C.F.R. § 335. Defendants Mukasey and Mueller have a pattern, practice or policy of

15 failing to complete FBI name checks in a reasonably timely manner, with the full knowledge that

16 CIS requires the completion of FBI name checks for adjudication of applications for

17 naturalization of the proposed plaintiff class. Defendants have a pattern, practice or policy of

18 failing to set deadlines for completing FBI name checks and to take all the other reasonable steps

19 necessary to complete the adjudication of applications for naturalization of the proposed plaintiff

20 class, in violation of 8 U.S.C. § 1446(d) and 8 C.F.R. § 335.3. These actions by Defendants

21 violate Plaintiffs’ rights to due process of law.

22

114. As a result of Defendants’ actions, Plaintiffs and members of the proposed class

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

24 warranted.

25

26

27

28
26
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1

PRAYER FOR RELIEF

2

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

3 the following relief:

4

(1)

Assume jurisdiction over the matter;

5

(2)

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

6

(3)

Review de novo and grant the named Plaintiffs’ applications for

7

naturalization, pursuant to 8 U.S.C. § 1447(b);

8

(4)

Order Defendants to promptly adjudicate, in a time period not to exceed

9

90 days, the currently pending applications for naturalization of all

10

members of the proposed class;

11

(5)

Order Defendants to adjudicate, within a reasonable time period not to

12

exceed 180 days from the date of the application date, all applications for

13

naturalization that shall be submitted in the future;

14

(6)

Order that any name checks Defendants choose to conduct shall be

15

completed in a manner that does not delay adjudication of naturalization

16

applications beyond 180 days from the date the application is received by

17

CIS;

18

(7)

Order Defendants to adopt a procedure for identifying naturalization cases

19

awaiting final adjudication based solely on FBI name checks, and for

20

identifying naturalization cases awaiting final adjudication for more than

21

120 days after successful completion of the naturalization examination, or

22

180 days from the date CIS receives the naturalization application;

23

(8)

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

24

Defendants Still, Gonzalez and Chertoff to adjudicate applications for

25

naturalization within 180 days of the date of the naturalization application

26

is received by CIS; (b) The failure of Defendants Mukasey and Mueller to

27

complete FBI name checks within a reasonable time; and (c) Defendants’

28

failures to take all necessary steps to adjudicate applications for

27
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1

naturalization within 180 days of receipt by CIS.

2

(9)

Award reasonable attorney fees and costs pursuant to the Equal Access to

3

Justice Act, 5 U.S.C. § 504, 28 U.S.C. § 2412; and

4

(10)

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

5 Dated: November 15, 2007

Respectfully submitted,

6

CECILLIA D. WANG

LUCAS GUTTENTAG

7

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION

8

IMMIGRANTS’ RIGHTS PROJECT

39 Drumm Street

9

San Francisco, CA 94111

10

JULIA HARUMI MASS

ALAN L. SCHLOSSER

11

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION OF NORTHERN

12

CALIFORNIA

39 Drumm Street

13

San Francisco, CA 94111

14

SIN YEN LING

JOREN LYONS

15

ASIAN LAW CAUCUS

939 Market Street, Suite 201

16

San Francisco, CA 94103

Telephone: (415) 896-1701

17

Facsimile: (415) 896-1702

18

TODD GALLINGER

Of Counsel

19

COUNCIL ON AMERICAN-ISLAMIC

RELATIONS (CAIR) – SAN

20

FRANCISCO BAY AREA

3000 Scott Boulevard, Suite 212

21

Santa Clara, CA 95054

Telephone: (408) 986-9874

22

Facsimile: (408) 986-9875

23

By: _________/s/_______________________

24

CECILLIA D. WANG

25

Attorneys for Plaintiffs

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28
28
SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR NATURALIZATION PURSUANT TO 8 U.S.C. § 1447(B)

Case3:07-cv-03455-WHA Document47 Filed11/15/07 Page29 of 30

1

CERTIFICATE OF SERVICE

2 I, Cecillia D. Wang, declare as follows:

3

I hereby certify that today I electronically filed the foregoing SECOND AMENDED

4 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR

5 NATURALIZATION PURSUANT TO 8 U.S.C. § 1447 with the Clerk of the Court using the
6 ECF system, which will send notification of such filing to the following email addresses:
7

Alan Lawrence Schlosser

8

American Civil Liberties Union

Via ECF at aschlosser@aclunc.org

Foundation of Northern California 9

Joren Lyons

Via ECF

10

Asian Law Caucus

at

joren@asianlawcaucus.org

11

Lucas Guttentag

American Civil Liberties Union

12

Immigrants’ Rights Project

Via ECF at lguttentag@aclu.org

13

Julia Harumi Mass

Via ECF

American Civil Liberties Union

at jmass@aclunc.org

14

Foundation of Northern California

15

Edward A. Olsen

United States Attorney’s Office 16

Via ECF at edward.olsen@usdoj.gov

Elizabeth J. Stevens

Via ECF

17

United States Department of Justice

at elizabeth.stevens@usdoj.gov

18

Jeffrey S. Robins

Via ECF

United States Department of Justice

at jeffrey.robins@usdoj.gov

19

20

21

In addition, I hereby certify that on this 15th day of November 2007, true and correct

22 copies of the SECOND AMENDED COMPLAINT FOR DECLARATORY AND

23 INJUNCTIVE RELIEF AND PETITION FOR NATURALIZATION PURSUANT TO 8 U.S.C.

24 § 1447 were served by U.S. Mail on the following non-ECF filers:

25

26

Sin Yen Ling Asian Law Caucus

Todd Gallinger Council on American-Islamic Relations

27

939 Market Street, Suite 201

3000 Scott Boulevard, Suite 212

San Francisco, CA 94103

Santa Clara, CA 95054

28

Case3:07-cv-03455-WHA Document47 Filed11/15/07 Page30 of 30

1

I declare under penalty of perjury under the laws of the State of California that the above

2 is true and correct.

3

4

Dated: November 15, 2007 San Francisco, California

5

6

CECILLIA

_________/s/______________ D. WANG

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 1

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5 IN THE UNITED STATES DISTRICT COURT
6

7

FOR THE NORTHERN DISTRICT OF CALIFORNIA

8

United States District Court For the Northern District of California

9 ALIA AHMADI, IGOR OVCHINNIKOV, and 10 SERGEI SAPOZHNIKOV,

11

Plaintiffs,

No. C 07-03455 WHA

12

v.

13

MICHAEL CHERTOFF, U.S. Secretary of Homeland Security, ROBERT S. MUELLER, III,

14

Director of the Federal Bureau of Investigation, MICHAEL MUKASEY, Attorney General of the

15

United States, EMILIO T. GONZALEZ, Director, U.S. Department of Homeland Security, Bureau

16

of Citizenship an Immigration Services, DAVID STILL, District Director, U.S. Department of

17

Homeland Security, Bureau of Citizenship and Immigration Services, San Francisco District,

RULE 54(b) JUDGMENT

18

Defendants.

19

/

20

21

For the reasons stated in the accompanying order granting plaintiffs’ motion for entry of

22 judgment pursuant to FRCP 54(b), FINAL JUDGMENT IS HEREBY ENTERED in favor of

23 defendants and against plaintiffs Alia Ahmadi, Igor Ovchinnikov, and Sergei Sapozhnikov

24 (parties to this action when the October 15, 2007, order was issued) with respect to the

25 following claims: claim two for unreasonable delay in violation of the Administrative

26 Procedure Act, claim three for failure to follow notice-and-comment requirements of the

27 Administrative Procedure Act, and claim four for violation of the Fifth Amendment due process

28 clause. These three claims are separable from plaintiffs’ remaining individual claims under

United States District Court For the Northern District of California

1 8 U.S.C. 1447(b), and were fully adjudicated by the October 15 order. This order finds that

2 there is no just reason for delaying an appeal of these issues.

3

4

IT IS SO ORDERED.

5

6 Dated: April 25, 2008. 7

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

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 Case3:07-cv-03455-WHA Document48 Filed11/30/07 Page1 of 18

1 SCOTT N. SCHOOLS, SC 9990 United States Attorney
2 JOANN M. SWANSON, CSBN 88143 Assistant United States Attorney
3 Chief, Civil Division EDWARD A. OLSEN, CSBN 214150
4 Assistant United States Attorney

5

450 Golden Gate Avenue, Box 36055

San Francisco, California 94102

6

Telephone: (415) 436-6915

FAX: (415) 436-6927

7

JEFFREY S. BUCHOLTZ

8 United States Department of Justice

Acting Assistant Attorney General, Civil Division

9 ELIZABETH J. STEVENS VSBN 47445

Senior Litigation Counsel

10 Office of Immigration Litigation

JEFFREY S. ROBINS NY SBN 4355244

11 Trial Attorney

12

P.O. Box 878, Ben Franklin Station

Washington, D.C. 20044

13

Telephone: (202) 616-1246

FAX: (202) 233-0397

14

Attorneys for Defendants

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17

SAN FRANCISCO DIVISION

18

ALIA AHMADI, et al.,

) No. C-07-3455-WHA

19

)

Plaintiffs,

) DEFENDANTS’ ANSWER TO

20

) PLAINTIFFS’ SECOND AMENDED

v.

) COMPLAINT

21

)

MICHAEL CHERTOFF, et al.,

)

22

)

)

23

Defendants.

)

)

24

25

26

27

28

Defendants’ Answer To Plaintiffs’ Second Amended Complaint - C-07-3455-WHA

Case3:07-cv-03455-WHA Document48 Filed11/30/07 Page2 of 18

1

COME NOW the Defendants, by and through the undersigned counsel, and submit this

2 Answer to the Plaintiffs’ Second Amended Complaint.

3

INTRODUCTION

4 1. This paragraph sets forth Plaintiffs’ portrayal of the action, including their legal

5 conclusions. Defendants object to the characterizations of their actions and to every legal

6 conclusion set forth by Plaintiffs. To the extent that a responsive pleading is required, Defendants

7 admit that plaintiffs Ahmadi, Genthcev, Huang, Ovchinnikov, Sapozhnikov, and Scovajsa are long

8 term Lawful Permanent Residents (“LPR”) of the United States. Defendants deny that plaintiffs

9 Ahmadi, Genthcev, Huang, Ovchinnikov, Sapozhnikov, and Scovajsa have met all statutory

10 requirements for naturalization. Defendants admit that plaintiffs plaintiffs Ahmadi, Genthcev,

11 Huang, Ovchinnikov, Sapozhnikov, and Scovajsa have not had their applications for naturalization

12 adjudicated. Defendants deny the remaining allegations in Paragraph 1.

13 2. This paragraph sets forth Plaintiffs' portrayal of the action, including their legal

14 conclusions. Defendants object to the phrase "suffering from systemic delays in the naturalization

15 process" as misleading and an erroneous characterization of Defendants' actions, and further object

16 to every legal conclusion set forth by Plaintiffs. To the extent a responsive pleading is required,

17 Defendants deny the allegations in paragraph 2. Defendants lack sufficient information or

18 knowledge to form a belief as to the truth of the remaining allegations in Paragraph 2, which

19 allegations are therefore denied.

20 3. This paragraph sets forth Plaintiffs' portrayal of the action, including their legal

21 conclusions. Defendants object to the characterizations of their actions and to every legal

22 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants admit

23 only that Defendants Gonzalez and Still are officers of the United States Citizenship and

24 Immigration Services (“CIS”) and that Defendant Mueller is an officer of the Federal Bureau of

25 Investigation (“FBI”), and that CIS is responsible for the naturalization process. Defendants deny

26 the remaining allegations in paragraph 3.

27 4. This paragraph sets forth Plaintiffs' portrayal of the action, including their legal

28 conclusions. Defendants object to the characterizations of their actions and to every legal

Defendants’ Answer To Plaintiffs’ Second Amended Complaint - C-07-3455-WHA

2

Case3:07-cv-03455-WHA Document48 Filed11/30/07 Page3 of 18

1 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants deny 2 that the case is appropriate for class action treatment under Rule 23, and admit only that 8 U.S.C. § 3 1447(b) provides that a district court may make a determination on an application for 4 naturalization if no adjudication occurs within 120 days of the examination. 5 5. This paragraph sets forth Plaintiffs' portrayal of the action, including their legal 6 conclusions. Defendants object to the phrase "Defendant officers of CIS have violated CIS 7 regulations" as misleading and an erroneous characterization of Defendants' actions, and further 8 object to every legal conclusion set forth by Plaintiffs. To the extent a response is deemed 9 necessary, Defendants deny the allegation in paragraph 5. 10 6. Denied. This paragraph sets forth Plaintiffs’ claims under the Administrative Procedure 11 Act (“APA”), and the Due Process Clause, which the Court dismissed in its Order dated October 12 15, 2007. 13 7. Denied. This paragraph sets forth Plaintiffs’ portrayal of their claims under the APA in 14 which the Court dismissed in its Order dated October 15, 2007. 15 8. Admitted. 16 9. This paragraph sets forth Plaintiffs' portrayal of the action, including their legal 17 conclusions. No response is needed, although Defendants object to the characterizations of their 18 actions and to every legal conclusion set forth by Plaintiffs. To the extent a response is deemed 19 necessary, Defendants deny that plaintiffs have met all statutory requirements for naturalization. 20 Defendants deny that the case is appropriate for class action treatment under Rule 23. Defendants 21 lack sufficient information or knowledge to form a belief as to the truth of the remaining 22 allegations in Paragraph 9. 23 10. This paragraph sets forth Plaintiffs' portrayal of the action, including their legal 24 conclusions. No response is needed, although Defendants object to the characterizations of their 25 actions and to every legal conclusion set forth by Plaintiffs. To the extent a response is deemed 26 necessary, Defendants deny that the case is appropriate for class action treatment under Rule 23. 27 Defendants deny the first and second sentence of Paragraph 10. Defendants lack sufficient 28

Defendants’ Answer To Plaintiffs’ Second Amended Complaint - C-07-3455-WHA

3

Case3:07-cv-03455-WHA Document48 Filed11/30/07 Page4 of 18

1 information or knowledge to form a belief as to the truth of the remaining allegations in Paragraph

2 10, which allegations are therefore denied.

3 11. This paragraph sets forth Plaintiffs' portrayal of the action, including their legal conclusions

4 and requests for relief. Defendants object to the characterizations of their actions and to every

5 legal conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants

6 deny that the case is appropriate for class action treatment under Rule 23. Plaintiffs' requests for

7 relief under the due process clause and the APA have been dismissed by the Court in its Order

8 dated October 15, 2007. Defendants deny the remaining allegations in Paragraph 11.

9

JURISDICTION AND VENUE

10 12. This paragraph sets forth conclusions of law to which no response is required. To the

11 extent that a responsive pleading is required, Defendants admit only that 8 U.S.C. § 1447(b)

12 confers jurisdiction over certain naturalization applications.

13 13. This paragraph sets forth Plaintiffs' portrayal of the action, including their legal

14 conclusions. Defendants object to the characterizations of their actions and to every legal

15 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants admit

16 that venue lies within the Northern District of California.

17

THE PARTIES

18 Plaintiffs:

19 14. Admitted.

20 15. Admitted.

21 16. Admitted.

22 17. Admitted

23 18. Admitted.

24 19. Admitted.

25 Defendants:

26 20. Admitted.

27 21. Admitted.

28 22. Admitted.

Defendants’ Answer To Plaintiffs’ Second Amended Complaint - C-07-3455-WHA

4

Case3:07-cv-03455-WHA Document48 Filed11/30/07 Page5 of 18

1 23. Admitted.

2 24. Admitted.

3

LEGAL FRAMEWORK

4 25. Admitted.

5 26. Admitted.

6 27. Admitted.

7 28. Admitted.

8 29. Admitted.

9 30. This paragraph sets forth Plaintiffs' portrayal of the action, including their legal

10 conclusions. Defendants object to the characterizations of their actions and to every legal

11 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants admit

12 the first sentence of Paragraph 30, and deny the second sentence of paragraph 30.

13 31. This paragraph sets forth Plaintiffs' portrayal of the action, including their legal

14 conclusions. Defendants object to the characterizations of their actions and to every legal

15 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants deny

16 the first sentence of Paragraph 31, and admit the second sentence of paragraph 31.

17 32. This paragraph sets forth Plaintiffs' portrayal of the action, including their legal

18 conclusions. Defendants object to the characterizations of their actions and to every legal

19 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants deny

20 the first sentence of Paragraph 32, and admit the second sentence of paragraph 32.

21 33. Admitted.

22 PRE-NATURALIZATION BACKGROUND CHECKS

23 34. The allegations in Paragraph 34 set forth conclusions of law to which no responsive

24 pleading is required. Defendants object to the characterizations of their actions and to every legal

25 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants

26 respectfully refer the Court to 8 C.F.R. § 335.2. Defendants admit the first two sentences of

27 paragraph 34, and admit the final sentence of paragraph 34. Defendants deny the third sentence of

28 paragraph 34.

Defendants’ Answer To Plaintiffs’ Second Amended Complaint - C-07-3455-WHA

5

Case3:07-cv-03455-WHA Document48 Filed11/30/07 Page6 of 18

1 35. The allegations in Paragraph 35 set forth Plaintiffs' portrayal of the action, including their 2 legal conclusions. Defendants object to the characterizations of their actions and to every legal 3 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants admit 4 only that the Interagency Border Inspection System (“IBIS”) and the FBI name check are among 5 the name-based background checks performed upon each applicant for naturalization, and deny the 6 remaining allegations in Paragraph 35. 7 36. The allegations in Paragraph 36 set forth Plaintiffs' portrayal of the action, including their 8 legal conclusions. Defendants object to the characterizations of their actions. To the extent a 9 response is deemed necessary, Defendants admit the allegations in Paragraph 36. 10 37. The allegations in Paragraph 37 set forth Plaintiffs' portrayal of the action, including their 11 legal conclusions. Defendants object to the characterizations of their actions and to every legal 12 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants deny 13 the allegations in Paragraph 37. 14 38. The allegations in Paragraph 38 set forth Plaintiffs' portrayal of the action, including their 15 legal conclusions. Defendants object to the characterizations of their actions and to every legal 16 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants deny 17 the allegations in Paragraph 38. 18 39. The allegations in Paragraph 39 set forth Plaintiffs' portrayal of the action, including their 19 legal conclusions. Defendants object to the characterizations of their actions and to every legal 20 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants are 21 without knowledge sufficient to admit or deny the allegations in the first sentence of Paragraph 39, 22 which allegations are therefore denied. Defendants deny the remaining allegations in 23 Paragraph 39. 24 40. The allegations in Paragraph 40 set forth Plaintiffs' portrayal of the action, including their 25 legal conclusions. Defendants object to the characterizations of their actions and to every legal 26 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants deny 27 the allegations in the first two sentences of Paragraph 40. Defendants admit that the CIS 28 Ombudsman’s Report contains the quotations in the remainder of Paragraph 40.

Defendants’ Answer To Plaintiffs’ Second Amended Complaint - C-07-3455-WHA

6

Case3:07-cv-03455-WHA Document48 Filed11/30/07 Page7 of 18

1 41. The allegations in Paragraph 41 set forth Plaintiffs' portrayal of the action, including their

2 legal conclusions. Defendants object to the characterizations of their actions and to every legal

3 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants are

4 without knowledge sufficient to admit or deny the allegations in the first sentence of Paragraph 41,

5 which allegations are therefore denied. Defendants admit that the CIS Ombudsman’s Report

6 contains the quotations in the remainder of Paragraph 41.

7 42. The allegations in Paragraph 42 set forth Plaintiffs' portrayal of the action, including their

8 legal conclusions. Defendants object to the characterizations of their actions and to every legal

9 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants admit

10 only that in April 2006, CIS stopped the practice of scheduling examinations until all portions of

11 the full criminal background check, including the FBI name check, are completed. Defendants

12 respectfully refer the court to review 8 C.F.R. § 335.2. Defendants deny the remaining allegations

13 in paragraph 42.

14

FACTS PERTAINING TO THE NAMED PLAINTIFFS

15 43. Defendants admit only that, based on information supplied by Alia Ahmedi and in

16 Defendants’ records, Ms. Ahmedi resides in Union City, California, and is a 73-year-old native

17 and citizen of Afghanistan. Defendants are without knowledge sufficient to admit or deny the

18 remaining allegations in this paragraph, which allegations are therefore denied.

19 44. Defendants admit that, based on information supplied by Ms. Ahmedi and in Defendants’

20 records, she applied for citizenship in 2002. Defendants deny that plaintiff Ahmedi meets all the

21 statutory requirements for naturalization. Defendants are without knowledge sufficient to admit or

22 deny the remaining allegations in this paragraph, which allegations are therefore denied.

23 45. The allegations in Paragraph 45 set forth Plaintiffs' portrayal of the action, including their

24 legal conclusions. Defendants object to the characterizations of their actions and to every legal

25 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants admit

26 that USCIS did not have a current set of fingerprints on file. Defendants are without knowledge

27 sufficient to admit or deny the remaining allegations in Paragraph 45, which allegations are

28 therefore denied.

Defendants’ Answer To Plaintiffs’ Second Amended Complaint - C-07-3455-WHA

7

Case3:07-cv-03455-WHA Document48 Filed11/30/07 Page8 of 18

1 46. The allegations in Paragraph 46 set forth Plaintiffs' portrayal of the action, including their 2 legal conclusions. Defendants object to the characterizations of their actions and to every legal 3 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants admit 4 only that the results of the FBI name check portion of the full criminal background check were 5 transmitted to CIS on or about October 13, 2005. 6 47. The allegations in Paragraph 47 sets forth Plaintiffs' portrayal of the action, including their 7 legal conclusions. Defendants object to the characterizations of their actions and to every legal 8 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants are 9 without knowledge sufficient to admit or deny the allegations in this paragraph, which allegations 10 are therefore denied. 11 48. Defendants admit that Mr. Gentchev is a 53-year-old native and citizen of Bulgaria, who 12 was admitted to the United States in October 1997 as a lawful permanent resident based on 13 sponsorship by an employer. Defendants are without knowledge sufficient to admit or deny the 14 remaining allegations in Paragraph 48, which allegations are therefore denied. 15 49. Defendants are without knowledge sufficient to admit or deny the allegations in Paragraph 16 49, which allegations are therefore denied. 17 50. Defendants admit only that, based on information in Defendants’ records, he applied for 18 citizenship in 2002, and successfully completed the civics and English portions of the interview in 19 2003. Defendants deny that plaintiff Gentchev meets all the statutory requirements for 20 naturalization. Defendants are without knowledge sufficient to admit or deny the remaining 21 allegations in this paragraph, which allegations are therefore denied. 22 51. Defendants admit only that CIS received several inquiries from Mr. Gentchev, and that he 23 was informed that his application was awaiting completion of security checks. Defendants are 24 without knowledge sufficient to admit or deny the remaining allegations in Paragraph 51, which 25 allegations are therefore denied. 26 52. Defendants admit that Mr. Huang is a 44-year-old native and citizen of China, who was 27 admitted to the United States in October 1994 as a lawful permanent resident based on the petition 28

Defendants’ Answer To Plaintiffs’ Second Amended Complaint - C-07-3455-WHA

8

Case3:07-cv-03455-WHA Document48 Filed11/30/07 Page9 of 18

1 of his wife. Defendants are without knowledge sufficient to admit or deny the remaining 2 allegations in Paragraph 52, which allegations are therefore denied. 3 53. Defendants are without knowledge sufficient to admit or deny the allegations in Paragraph 4 53, which allegations are therefore denied. 5 54. Defendants admit only that, based on information in Defendants’ records, he applied for 6 citizenship in 2003, and successfully completed the civics and English portions of the interview in 7 2004. Defendants deny that Mr. Huang meets all the statutory requirements for naturalization. 8 Defendants are without knowledge sufficient to admit or deny the remaining allegations in this 9 paragraph, which allegations are therefore denied. 10 55. Defendants are without knowledge sufficient to admit or deny the allegations in Paragraph 11 55, which allegations are therefore denied. 12 56. Defendants are without knowledge sufficient to admit or deny the allegations in Paragraph 13 56, which allegations are therefore denied. 14 57. Defendants admit only that, based on information supplied by Igor Ovchinnikov and in 15 Defendants’ records, Mr. Ovchinnikov is a 43-year-old native of the former Soviet Union and 16 citizen of Ukraine, who was admitted to the United States in January 1998 as a lawful permanent 17 resident through the diversity visa program. Defendants are without knowledge sufficient to admit 18 or deny the remaining allegations in Paragraph 57, which allegations are therefore denied. 19 58. Defendants are without knowledge sufficient to admit or deny the allegations in Paragraph 58, 20 which allegations are therefore denied. 21 59. Defendants admit only that, based on information supplied by Mr. Ovchinnikov and in 22 Defendants’ records, he applied for citizenship in 2003, and successfully completed the civics and 23 English portions of the interview in 2004. Defendants deny that plaintiff Ovchinnikov meets all 24 the statutory requirements for naturalization. Defendants are without knowledge sufficient to 25 admit or deny the remaining allegations in this paragraph, which allegations are therefore denied. 26 60. Defendants object to the characterizations of their actions and to every legal conclusion set 27 forth by Plaintiffs. Defendants admit only that USCIS requested updated fingerprints in June of 28

Defendants’ Answer To Plaintiffs’ Second Amended Complaint - C-07-3455-WHA

9

Case3:07-cv-03455-WHA Document48 Filed11/30/07 Page10 of 18

1 2005. Defendants are without knowledge sufficient to admit or deny the remaining allegations in 2 Paragraph 60, which allegations are therefore denied. 3 61. Defendants admit only that CIS received several inquiries from Mr. Ovchinnikov, and that 4 he was informed that his application was awaiting completion of security checks. Defendants also 5 admit that Mr. Ovchinnikov requested that his application be expedited in February of 2007. 6 Defendants are without knowledge sufficient to admit or deny the remaining allegations in 7 Paragraph 61, which allegations are therefore denied. 8 62. Defendants are without knowledge sufficient to admit or deny the allegations in this 9 paragraph, which allegations are therefore denied. 10 63. Defendants admit only that, based on information supplied by Sergei Yuri Sapozhnikov and 11 in Defendants’ records, Mr. Sapozhnikov is a 46-year-old native of the former Soviet Union and 12 citizen of Russia, who became a lawful permanent resident in 1998. Defendants lack sufficient 13 information or knowledge to form a belief as to the truth of the remaining allegations in Paragraph 14 63, which allegations are therefore denied. 15 64. Defendants admit only that, based on information supplied by Mr. Sapozhnikov and in 16 Defendants’ records, he applied for citizenship in 2004, and successfully completed the civics and 17 English portions of the interview in 2004. Defendants are without knowledge sufficient to admit 18 or deny the remaining allegations in this paragraph, which allegations are therefore denied. 19 65. Defendants lack sufficient information or knowledge to form a belief as to the truth of the 20 allegations in Paragraph 65, which allegations are therefore denied. 21 66. Defendants admit only that Helga Scovajsa is a 68-year-old native of former Czechoslovakia 22 and a citizen of the Czech Republic, who became a lawful permanent resident in 1978 based on the 23 petition of her husband. Defendants lack sufficient information or knowledge to form a belief as 24 to the truth of the remaining allegations in Paragraph 66, which allegations are therefore denied. 25 67. Defendants admit only that, Ms. Scovajsa applied for citizenship in 2004, and successfully 26 completed the civics and English portions of the interview also in 2004. Defendants are without 27 knowledge sufficient to admit or deny the remaining allegations in this paragraph, which 28 allegations are therefore denied. Defendants deny that Ms. Scovajsa meets all the statutory

Defendants’ Answer To Plaintiffs’ Second Amended Complaint - C-07-3455-WHA

10

Case3:07-cv-03455-WHA Document48 Filed11/30/07 Page11 of 18

1 requirements for naturalization. Defendants are without knowledge sufficient to admit or deny the 2 remaining allegations in this paragraph, which allegations are therefore denied. 3 68. Defendants admit only that CIS received at least one inquiry from Ms. Scovajsa, and that 4 she was informed that her application was awaiting completion of security checks. Defendants are 5 without knowledge sufficient to admit or deny the remaining allegations in Paragraph 68, which 6 allegations are therefore denied. 7 69. Defendants lack sufficient information or knowledge to form a belief as to the truth of the 8 allegations in Paragraph 69, which allegations are therefore denied. 9 Defendants’ Policies and Practices 10 70. Denied. Defendants object to the characterizations of Defendants’ actions and to every 11 legal conclusion set forth by Plaintiffs. Defendants assert that the case is not appropriate for class 12 action treatment under Rule 23. 13 71. Denied. Defendants object to the characterizations of Defendants’ actions and to every 14 legal conclusion set forth by Plaintiffs. Defendants assert that the case is not appropriate for class 15 action treatment under Rule 23. 16 72. Denied. Defendants object to the characterizations of Defendants’ actions and to every 17 legal conclusion set forth by Plaintiffs. Defendants assert that the case is not appropriate for class 18 action treatment under Rule 23. 19 73. Denied. Defendants object to the characterizations of Defendants’ actions and to every 20 legal conclusion set forth by Plaintiffs. Defendants assert that the case is not appropriate for class 21 action treatment under Rule 23. 22 74. Denied. Defendants object to the characterizations of Defendants’ actions and to every 23 legal conclusion set forth by Plaintiffs. Defendants assert that the case is not appropriate for class 24 action treatment under Rule 23. 25 75. Denied. Defendants object to the characterizations of Defendants’ actions and to every 26 legal conclusion set forth by Plaintiffs. 27 76. Denied. Defendants object to the characterizations of Defendants’ actions and to every 28 legal conclusion set forth by Plaintiffs.

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Case3:07-cv-03455-WHA Document48 Filed11/30/07 Page12 of 18

1 77. The court dismissed all of Plaintiffs’ claims under the APA, including Plaintiffs’ 2 allegations regarding notice and comment, in its Order dated October 15, 2007. To the extent that 3 a responsive pleading is required, Defendants are without knowledge sufficient to admit or deny 4 the allegations in the first sentence, which allegations are thus denied, and deny the allegations in 5 the second sentence. 6 78. Denied. Defendants object to the characterizations of Defendants’ actions and to every 7 legal conclusion set forth by Plaintiffs. Defendants assert that the case is not appropriate for class 8 action treatment under Rule 23. 9 PREJUDICE SUFFERED BY APPLICANTS WITH DELAYED CASES 10 79. Denied. Defendants object to the characterizations of Defendants’ actions and to every 11 legal conclusion set forth by Plaintiffs. Defendants assert that the case is not appropriate for class 12 action treatment under Rule 23. 13 80. Defendants deny that Plaintiffs assert cognizable injuries. Defendants admit that a minor 14 child may obtain derivative citizenship from a naturalizing parent, and that immediate relatives of 15 United States citizens are not generally subject to worldwide limitations on the number of 16 immigrant visas. 17 81. Defendants are without knowledge sufficient to admit or deny the allegations in this 18 paragraph, which allegations are therefore denied, and note that none of the plaintiffs named in 19 this action have alleged separations from their spouses or children. 20 82. Defendants are without knowledge sufficient to admit or deny the allegations in this 21 paragraph, which allegations are therefore denied. 22 83. Defendants are without knowledge sufficient to admit or deny the allegations in this 23 paragraph, which allegations are therefore denied. 24 84. Defendants deny the allegations in paragraph 84. Defendants object to the 25 characterizations of Defendants’ actions set forth by Plaintiffs. 26 CLASS ALLEGATIONS 27 85. Defendants deny that the case is appropriate for class action treatment under Rule 23. 28

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12

Case3:07-cv-03455-WHA Document48 Filed11/30/07 Page13 of 18

1 86. Defendants deny that the case is appropriate for class action treatment under Rule 23.

2 Defendants admit that the CIS Ombudsman’s 2007 report contained the quotations and figures

3 used in Paragraph 86.

4 87. Defendants deny that the case is appropriate for class action treatment under Rule 23.

5 Defendants admit only that the CIS 2005 report contained the numbers used in Paragraph 87.

6 88. Defendants deny that the case is appropriate for class action treatment under Rule 23, and

7 deny that plaintiffs have demonstrated commonality. Defendants assert that Plaintiffs’ claims

8 under the due process clause and the APA, have been dismissed by the Court in its Order dated

9 October 15, 2007.

10 89. Defendants deny that the case is appropriate for class action treatment under Rule 23, and

11 deny that plaintiffs have demonstrated typicality. Defendants object to the characterizations of

12 Defendants’ actions and to every legal conclusion set forth by Plaintiffs.

13 90. Defendants deny that the case is appropriate for class action treatment under Rule 23, and

14 deny that the allegations in Paragraph 90. Defendants object to the characterizations of

15 Defendants’ actions and to every legal conclusion set forth by Plaintiffs.

16 91. Defendants deny that the case is appropriate for class action treatment under Rule 23, and

17 deny that Plaintiffs have demonstrated that they will adequately represent the Class. Defendants

18 Defendants admit that counsel for Plaintiffs have extensive expertise in class action litigation

19 and/or immigrants rights cases. Defendants object to the characterizations of Defendants’ actions

20 and to every legal conclusion set forth by Plaintiffs, and deny the final sentence of paragraph 91.

21 Declaratory And Injunctive Relief Allegations

22 92. The allegations in Paragraph 92 set forth conclusions of law to which no responsive

23 pleading is required. However, to the extent a response is deemed necessary, Defendants deny the

24 first and second sentence of Paragraph 92, and admit that Defendants disagree with Plaintiffs. 92.

25

Denied.

26 94. The allegations in Paragraph 94 set forth Plaintiffs’ request for relief, to which no

27 responsive pleading is required. However, to the extent a response is deemed necessary,

28 Defendants deny the allegations in Paragraph 94.

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1

CAUSES OF ACTION

2 Count One

3 95. Defendants reassert their preceding responses to Plaintiffs' allegations in Paragraphs 1

4 through 94 as though fully set forth herein.

5 96. Denied. Defendants object to the characterizations of Defendants’ actions and to every

6 legal conclusion set forth by Plaintiffs.

7 97. Defendants deny any named Plaintiff has met all statutory requirements for naturalization.

8 Defendants admit that all named plaintiffs have not had their applications adjudicated.

9 Count Two

10 98. Defendants reassert their preceding responses to Plaintiffs' allegations in Paragraphs 1

11 through 97 as though fully set forth herein.

12 99. Denied. This paragraph sets forth Plaintiffs’ portrayal of their claims under the APA in

13 which the Court dismissed in its Order dated October 15, 2007.

14 100. Denied. This paragraph sets forth Plaintiffs’ portrayal of their claims under the APA in

15 which the Court dismissed in its Order dated October 15, 2007. Defendants object to the

16 characterizations of Defendants’ actions and to every legal conclusion set forth by Plaintiffs.

17 101. Denied. This paragraph sets forth Plaintiffs’ portrayal of their claims under the APA in

18 which the Court dismissed in its Order dated October 15, 2007. Defendants object to the

19 characterizations of Defendants’ actions and to every legal conclusion set forth by Plaintiffs.

20 102. Denied. This paragraph sets forth Plaintiffs’ portrayal of their claims under the APA in

21 which the Court dismissed in its Order dated October 15, 2007. Defendants object to the

22 characterizations of Defendants’ actions and to every legal conclusion set forth by Plaintiffs.

23 103. Denied. This paragraph sets forth Plaintiffs’ portrayal of their claims under the APA in

24 which the Court dismissed in its Order dated October 15, 2007. Defendants object to the

25 characterizations of Defendants’ actions and to every legal conclusion set forth by Plaintiffs.

26 Count Three

27 104. Defendants reassert their preceding responses to Plaintiffs' allegations in Paragraphs 1

28 through 103 as though fully set forth herein.

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14

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1 105. Admitted. 2 106. Denied. This paragraph sets forth Plaintiffs’ portrayal of their claims under the APA in 3 which the Court dismissed in its Order dated October 15, 2007. Defendants object to the 4 characterizations of Defendants’ actions and to every legal conclusion set forth by Plaintiffs. 5 107. Denied. This paragraph sets forth Plaintiffs’ portrayal of their claims under the APA in 6 which the Court dismissed in its Order dated October 15, 2007. Defendants object to the 7 characterizations of Defendants’ actions and to every legal conclusion set forth by Plaintiffs. 8 108. Denied. This paragraph sets forth Plaintiffs’ portrayal of their claims under the APA in 9 which the Court dismissed in its Order dated October 15, 2007. Defendants object to the 10 characterizations of Defendants’ actions and to every legal conclusion set forth by Plaintiffs. 11 109. Denied. This paragraph sets forth Plaintiffs’ portrayal of their claims under the APA in 12 which the Court dismissed in its Order dated October 15, 2007. Defendants object to the 13 characterizations of Defendants’ actions and to every legal conclusion set forth by Plaintiffs. 14 Count Four 15 110. Defendants reassert their preceding responses to Plaintiffs' allegations in Paragraphs 1 16 through 109 as though fully set forth herein. 17 111. The allegation in Paragraph 111 sets forth a conclusion of law to which no responsive 18 pleading is required. To the extent that an answer by Defendants is required, Defendants admit the 19 legal conclusions in Paragraph 111. 20 112. Denied. This paragraph sets forth Plaintiffs’ portrayal of their claims under the Due 21 Process Clause which the Court dismissed in its Order dated October 15, 2007. Defendants object 22 to the characterizations of Defendants’ actions and to every legal conclusion set forth by Plaintiffs. 23 113. Denied. This paragraph sets forth Plaintiffs’ portrayal of their claims under the Due 24 Process Clause which the Court dismissed in its Order dated October 15, 2007. Defendants object 25 to the characterizations of Defendants’ actions and to every legal conclusion set forth by Plaintiffs. 26 114. Denied. This paragraph sets forth Plaintiffs’ portrayal of their claims under the Due 27 Process Clause which the Court dismissed in its Order dated October 15, 2007. Defendants object 28 to the characterizations of Defendants’ actions and to every legal conclusion set forth by Plaintiffs.

Defendants’ Answer To Plaintiffs’ Second Amended Complaint - C-07-3455-WHA

15

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1

PRAYER FOR RELIEF

2

The remainder of the complaint constitutes Plaintiffs’ request for relief to which no

3 responsive pleading is necessary. To the extent that a responsive pleading is required, Defendants

4 deny the prayer for relief.

5

Defendants deny that Plaintiffs are entitled to the relief sought in the complaint or to any

6 relief whatsoever.

7

* * * * *

8

In addition, Defendants assert the following affirmative defenses:

9

FIRST AFFIRMATIVE DEFENSE

10

The complaint fails to state a claim upon which relief can be granted.

11

SECOND AFFIRMATIVE DEFENSE

12

The complaint should be dismissed on the ground of mootness.

13

THIRD AFFIRMATIVE DEFENSE

14

The complaint is so general as to be insufficient to give Defendants fair notice of whether

15 Plaintiffs have standing to assert their claims.

16

FOURTH AFFIRMATIVE DEFENSE

17

The complaint should be summarily dismissed, as the remaining named Plaintiffs have

18 failed to demonstrate that they meet all the statutory requirements for naturalization.

19

FIFTH AFFIRMATIVE DEFENSE

20

The complaint is so general as to be insufficient to give Defendants fair notice of the bases

21 upon which Plaintiffs bring their claims.

22

SIXTH AFFIRMATIVE DEFENSE

23

This Court lacks jurisdiction over Plaintiffs' Cause of Action under the Administrative

24 Procedure Act.

25

SEVENTH AFFIRMATIVE DEFENSE

26

This Court lacks jurisdiction over Plaintiffs' Cause of Action under the Declaratory

27 Judgment Act.

28

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16

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1

EIGHTH AFFIRMATIVE DEFENSE

2

Relief should be denied plaintiffs as an exercise of judicial discretion to withhold relief.

3 The Court should not, even if empowered to do so, engage in the business of reordering agency

4 priorities, or jeopardize national security or the public safety by ordering Defendants to provide

5 documentation to Plaintiffs and alleged class members before the satisfactory completion of all

6 requisite background and security checks.

7

NINTH AFFIRMATIVE DEFENSE

8

Plaintiffs have failed to state a cause of action under the Due Process Clause.

9

* * * * *

10

WHEREFORE Defendants ask that this action be dismissed with prejudice, that judgment

11 be entered for Defendants, that the request of an award of costs and expenses of the suit be denied

12 to Plaintiffs, and that the Court grant such other and further relief to Defendants as it deems

13 proper.

14

15

Respectfully submitted,

16

SCOTT N. SCHOOLS

17

United States Attorney

JOANN M. SWANSON

18

Assistant United States Attorney

Chief, Civil Division

19

EDWARD A. OLSEN

Assistant United States Attorney

20

21 22 23 24 Dated: November 30, 2007 25 26

JEFFREY S. BUCHOLTZ United States Department of Justice Acting Assistant Attorney General, Civil Division ELIZABETH J. STEVENS Senior Litigation Counsel
By: /s/ JEFFREY S. ROBINS Trial Attorney

27

28

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17

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1

CERTIFICATE OF SERVICE

2 Case No. C-07-3455-WHA

3

4

I hereby certify that on this 30th day of November 2007, one copy of the foregoing

DEFENDANTS’ ANSWER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT was

5 served on counsel for Plaintiffs via the district court ECF system which will send notification of

such filing to the following ECF filers:

6

Julia Harumi Mass

7 jmass@aclu.org

Alan L. Schlosser

8 aschlosser@aclu.org

Cecillia D. Wang

9 cwang@aclu.org

ACLU Foundation of Northern California

10 Lucas Guttentag

lguttentag@aclu.org

11 ACLU Immigrants’ Rights Project

Christopher Joren Lyons

12 joren@asianlawcaucus.org

Asian Law Caucus

13 Edward A. Olsen

edward.olsen@usdoj.gov

14 United States Attorney’s Office

Elizabeth J. Stevens

15 Elizabeth.Stevens@usdoj.gov

Department of Justice, Office of Immigration Litigation

16

In addition, I hereby certify that on this 30th day of November 2007, true and correct copies

17 of DEFENDANTS’ ANSWER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT were

served by Federal Express next-day delivery on the following non-ECF filers:

18

Sin Yen Ling

Todd Gallinger

19 Asian Law Caucus

Council on American-Islamic Relations (CAIR)

939 Market Street, Suite 201

3000 Scott Boulevard, Suite 212

20 San Francisco, CA 94103

Santa Clara, CA 95054

21

/S/

JEFFREY S. ROBINS

22

Trial Attorney

Office of Immigration Litigation

23

Civil Division

U.S. Department of Justice

24

Post Office Box 878, Ben Franklin Station

Washington, D.C. 20044

25

26

27

28

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 Case3:07-cv-03455-WHA Document79 Filed05/15/08 Page1 of 18

1 CECILLIA D. WANG (CSB #187782) LUCAS GUTTENTAG (CSB #90208)
2 AMERICAN CIVIL LIBERTIES UNION FOUNDATION
3 IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street
4 San Francisco, CA 94111 Telephone: (415) 343-0775
5 Facsimile: (415) 395-0950 Email: CWang@aclu.org
6 Attorneys for Plaintiffs-Petitioners
7 *Additional counsel listed on following page

8

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12 AMIR SAYED, BIREN SHAH and MIEKE
13 VANDEWALLE-CALLINAN,

14

15

v.

Plaintiffs-Petitioners,

Case No. 07-CV-3455-WHA

16 MICHAEL CHERTOFF, U.S. Secretary of

THIRD AMENDED COMPLAINT

Homeland Security; ROBERT S. MUELLER

17 III, Director of the Federal Bureau of

Investigation; MICHAEL MUKASEY,

Judge: Hon. William A. Alsup

18 Attorney General of the United States;

EMILIO T. GONZALEZ, Director, U.S.

19 Department of Homeland Security, Bureau of

Citizenship and Immigration Services; DAVID

20 STILL, District Director, U.S. Department of

Homeland Security, Bureau of Citizenship and

21 Immigration Services, San Francisco District,

22

Defendants-Respondents.

23

24

25

26

27

28
1
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1 Additional counsel:
2 JULIA HARUMI MASS (CSB #189649) ALAN L. SCHLOSSER (CSB #49957)
3 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA
4 39 Drumm Street San Francisco, CA 94111
5 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
6 SIN YEN LING*
7 JOREN LYONS (CSB #203403) ASIAN LAW CAUCUS
8 939 Market Street, Suite 201 San Francisco, CA 94103
9 Telephone: (415) 896-1701 Facsimile: (415) 896-1702
10 *Application for admission pro hac vice forthcoming
11
12 Of counsel:
13 TODD GALLINGER (CSB #238666) COUNCIL ON AMERICAN-ISLAMIC RELATIONS
14 (CAIR) – SAN FRANCISCO BAY AREA 3000 Scott Boulevard, Suite 212
15 Santa Clara, CA 95054 Telephone: (408) 986-9874
16 Facsimile: (408) 986-9875
17
18
19
20
21
22
23
24
25
26
27
28
2
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1

INTRODUCTION

2

1. This action was brought by long-time lawful permanent residents of the United

3 States who, like tens of thousands of others around the United States, have suffered from

4 extraordinary, systemic delays in the processing of naturalization applications. Defendant

5 officials of U.S. Citizenship and Immigration Services (“CIS”) and the Federal Bureau of

6 Investigation (“FBI”) have caused these system-wide delays – which have often left applicants

7 waiting for an answer for years – through their policies and practices concerning a background

8 check known as an “FBI name check.” As currently implemented, the FBI name check is run

9 against a wildly overinclusive database that contains not only the names of criminals, suspects

10 and targets of investigations, but also countless innocent persons who happen to come into

11 contact with the FBI, such as crime victims and witnesses.

12

2. CIS’s own ombudsman has criticized the rampant delays in the processing of

13 naturalization applications. In an annual report released in June 2007, the CIS Ombudsman

14 concluded: “FBI name checks, one of several security screening tools used by USCIS, continue

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

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

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

18 benefits. The problem of long-pending FBI name checks cases worsened during the reporting

19 period [of June 2006 to June 2007].” CIS Ombudsman, Annual Report 2007, at 37 (emphasis in

20 original), available at http://www.dhs.gov/xabout/structure/gc_1183751418157.shtm.

21

3. Because of their FBI name check procedures, the Defendants are engaging in

22 rampant violations of 8 C.F.R. § 335.3, a federal regulation providing that naturalization

23 applications shall be adjudicated within 120 days of an initial examination (i.e., a naturalization

24 interview).

25

4. The original Complaint in this matter, as well as the First and Second Amended

26 Complaints, included individual claims for de novo adjudication of the plaintiffs’ naturalization

27 applications by the Court pursuant to 8 U.S.C. § 1447(b), and also claims under the

28 Administrative Procedure Act (“APA”) and Due Process Clause of the Fifth Amendment for
3
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1 declaratory and injunctive relief from the Defendants’ policy, pattern and practice of systemic

2 delays in the naturalization process and for Defendants’ failure to follow the APA’s notice-and-

3 comment requirements. By an order dated October 15, 2007, the Court granted the Defendants’

4 motion to dismiss the APA and Due Process claims. By a separate order and judgment filed on

5 April 25, 2008, the Court granted Plaintiffs’ request for a partial judgment under Federal Rule of

6 Civil Procedure 54(b) as to the dismissal of the APA and Due Process claims and also granted

7 leave to add new plaintiffs in order to maintain a live controversy for purposes of appealing the

8 partial judgment.

9

5. The new Plaintiffs, Amir Sayed, Biren Shah and Mieke Vandewalle-Callinan, are

10 long-time lawful permanent residents of the United States. Each of them has sought to become a

11 citizen of this country by applying for naturalization, having met all statutory requirements.

12 Each of the Plaintiffs has joined this lawsuit because of Defendants’ policies and practices

13 causing unreasonable and prolonged delays in adjudicating Plaintiffs’ naturalization applications.

14 Each Plaintiff successfully passed the naturalization examination and cleared criminal

15 background checks at least three years prior to joining this lawsuit. Each Plaintiff continues to

16 await adjudication of his or her application.

17

6. Plaintiffs Sayed, Shah and Vandewalle-Callinan seek to be naturalized by this

18 Court, as Congress has authorized through the Immigration and Nationality Act. See 8 U.S.C. §

19 1447(b) (district court may make a determination of a naturalization application if there has been

20 no adjudication within 120 days of the date of examination – i.e., the applicant’s naturalization

21 interview). See United States v. Hovsepian, 359 F.3d 1144, 1151 (9th Cir. 2004) (en banc).

22

7. Anticipating the possibility that the Court may deem completion of the FBI name

23 check a necessary precondition for its de novo adjudication of Plaintiffs’ petitions under 8 U.S.C.

24 1447, Plaintiffs also bring claims under the APA and, in the alternative, 28 U.S.C. § 1361 against

25 Defendant FBI officials specifically for the purpose of obtaining injunctive relief requiring

26 completion of the FBI name check. Plaintiffs’ APA claim against the FBI is brought with the

27 understanding that the Court’s order dated October 15, 2007, dismissing Plaintiffs’ unreasonable

28 delay claim under the APA, was based on the Court’s conclusion that 8 U.S.C. § 1447(b)
4
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1 provided a legal remedy that precluded systemic APA relief against the CIS defendants.

2 Plaintiffs’ instant claims against the FBI defendants are distinguishable in that Plaintiffs have no

3 remedy, other than the APA or mandamus, to seek injunctive relief requiring the FBI’s

4 completion of the name check process in their individual cases.

5

8. Plaintiffs’ naturalization has been delayed not because of any individual fault in

6 their applications, but as a result of the Defendants’ policies and practices of unreasonable and

7 systemic delays in the naturalization and FBI name check processes nationwide. But for the

8 Court’s April 25, 2008, order denying class certification, each of the Plaintiffs would seek to

9 serve as class representatives for purposes of pursuing systemic claims for relief from

10 Defendants’ policies and practices under the APA and Due Process Clause.

11

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

12 Nation their home. They seek to pledge their allegiance to their adopted country and to

13 participate fully in U.S. society as citizens. Each of the Plaintiffs has met the statutory

14 requirements to become a U.S. citizen, and in many cases they have sought relief through

15 requests to members of Congress and through formal and informal inquiries with the

16 government. Nonetheless, each of the Plaintiffs has been stymied in his or her efforts by the

17 unreasonable and extraordinary delay of the Defendants.

18

10. As a result of the Defendants’ failure to process naturalization applications within

19 a reasonable time, under timelines set by Congress, Plaintiffs have been unable to participate in

20 civic society by voting and jury service. Plaintiffs also have been unable expeditiously to

21 petition for lawful permanent residency on behalf of immediate relatives living abroad. Plaintiffs

22 also have been unable to participate freely as U.S. citizens in the Visa Waiver Program or to

23 travel abroad and to return to the United States without fear of exclusion.

24

JURISDICTION AND VENUE

25

11. This Court has subject matter jurisdiction over this matter pursuant to 8 U.S.C. §

26 1447(b) (district court jurisdiction to adjudicate delayed naturalization applications), 5 U.S.C. §

27 702 (Administrative Procedure Act), 28 U.S.C. § 1361 (writ of mandamus) and 28 U.S.C. § 1331

28 (federal question).

5
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1

12. Venue is proper in the Northern District of California pursuant to 28 U.S.C. §§

2 1391(e). Plaintiffs sue the Defendants in their official capacities as officers and employees of the

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

4 this District, where the Plaintiffs’ applications for naturalization are pending before the San

5 Francisco District of the CIS. In addition, venue is proper in this District pursuant to 8 U.S.C. §

6 1447(b), which provides that a petition for de novo review of a naturalization application shall be

7 filed in the district in which the applicant resides. All of the Plaintiffs live within this District.

8

PARTIES

9

13. Plaintiff Amir Sayed lives in Oakland, California. He is a citizen of Pakistan and

10 a lawful permanent resident of the United States. He applied for naturalization in 2004 and

11 passed his naturalization examination in February 2005. His naturalization application has not

12 been adjudicated.

13

14. Plaintiff Biren Shah is a native and citizen of India. He is a lawful permanent

14 resident of the United States and lives in San Jose, California. He applied for naturalization in

15 2004 and passed his naturalization examination in May 2005. His naturalization application has

16 not been adjudicated.

17

15. Plaintiff Mieke Vandewalle-Callinan is a native and citizen of Belgium. She is a

18 lawful permanent resident of the United States and lives in San Francisco, California. She

19 applied for naturalization in 2004 and passed her naturalization examination in August 2004.

20 Her naturalization application has not been adjudicated.

21

16. Defendant Michael Chertoff is the U.S. Secretary of Homeland Security and has

22 ultimate responsibility for CIS, a subunit of the Department of Homeland Security. Mr. Chertoff

23 is ultimately responsible for the administration of all immigration and naturalization laws,

24 including the processing and determination of applications for naturalization. He is sued in his

25 official capacity.

26

17. Defendant Robert S. Mueller III is the Director of the Federal Bureau of

27 Investigation. Mr. Mueller is ultimately responsible for the processing of FBI name checks

28 submitted by CIS to the FBI during the naturalization process. Mr. Mueller is sued in his official
6
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1 capacity.

2

18. Defendant Michael Mukasey is the Attorney General of the United States. He is

3 the head of the U.S. Department of Justice, which encompasses the FBI. Mr. Mukasey is also

4 jointly responsible with Mr. Chertoff for enforcement of immigration laws. Mr. Mukasey is sued

5 in his official capacity.

6

19. Respondent Emilio T. Gonzalez is the Director of CIS. Mr. Gonzalez is

7 responsible for the processing and determination of all applications for naturalization submitted

8 to CIS. He is sued in his official capacity.

9

20. Respondent David Still is the District Director for the San Francisco District of

10 CIS. Mr. Still is responsible for applications for naturalization pending in the San Francisco

11 District. Mr. Still is sued in his official capacity.

12

LEGAL FRAMEWORK

13 General Requirements for Naturalization

14

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

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

16 as naturalization.

17

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

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

19 period of physical presence in the United States; and good moral character. 8 U.S.C. §§ 1423,

20 1427(a).

21

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

22 8 U.S.C. § 1445. CIS is the agency that is responsible for adjudicating naturalization

23 applications.

24

24. Once an application is submitted, CIS conducts a criminal background

25 investigation of each naturalization applicant. 8 U.S.C. § 1446(a); 8 C.F.R. § 335.1.

26

25. After a criminal background investigation is completed, CIS schedules a

27 naturalization examination, at which an applicant meets with a CIS examiner who is authorized

28 to ask questions and take testimony. The CIS examiner must determine whether to grant or deny
7
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1 the naturalization application. 8 U.S.C. § 1446(d).

2

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

3 requirements for naturalization. 8 C.F.R. § 335.3. Naturalization is not a discretionary benefit,

4 but a right upon satisfaction of statutory requirements.

5

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

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

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

8

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

9 examination, the applicant may seek de novo review of the application by a district court. 8

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

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

12 2004), and it may naturalize the applicant. 8 U.S.C. § 1447(b).

13

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

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

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

16 Ceremony (July 10, 2001), available at http://www.whitehouse.gov/news/releases/2001/07/print

17 20010710-1.html (urging immigration agencies to adopt standard of six-month processing time

18 for applications for immigration benefits).

19 Pre-Naturalization Background Checks

20

30. Under 8 U.S.C. § 335.2, CIS should not schedule the “initial examination” (i.e.,

21 the naturalization interview) until the agency has received “a definitive response from the [FBI]

22 that a full criminal background check” has been completed. The regulation defines a “definitive

23 response” as one of the following: (1) FBI confirmation that the applicant “does not have an

24 administrative or criminal record; (2) FBI confirmation that the applicant does have such a

25 record; or (3) FBI confirmation that the applicant’s fingerprint cards “have been determined

26 unclassifiable for the purpose of conducting a criminal background check and have been

27 rejected.” 8 U.S.C. § 335.2(b). Thus, 8 C.F.R. § 335.2(b) contemplates that the “criminal

28 background check” required by regulation is based upon fingerprint records, and is not a “name
8
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1 check.” The FBI fingerprint check is run against criminal records showing arrests, criminal

2 charges not leading to convictions, and criminal convictions.

3

31. Nonetheless, CIS runs two name-based background checks on each naturalization

4 applicant. First, CIS runs each applicant’s name against the Interagency Border Inspection

5 System (“IBIS”), a centralized records system combining information on “national security risks,

6 public safety issues and other law enforcement concerns” from multiple law enforcement and

7 intelligence agencies. Second, in 1998, CIS instituted the FBI name check. As originally

8 implemented in 1998, the FBI name check ran a naturalization applicant’s name against a

9 database containing the names of persons who are or were the subjects of an FBI investigation.

10

32. In 2002, without giving public notice and an opportunity for public comment, CIS

11 drastically expanded the scope of the FBI name check, so that an applicant’s name would be

12 checked against not only the names of investigation subjects, but also names of innocent people

13 such as victims and witnesses who are merely mentioned in FBI files.

14

33. As expanded in 2002, the FBI name check requirement is implemented in such a

15 manner that it is highly likely that an applicant may be identified erroneously as a person “of

16 interest” to the FBI, thereby delaying adjudication of the naturalization application, even though

17 the applicant has committed no crimes, does not pose any kind of security risk, and has never

18 been a suspect in any investigation. For example, the name check may result in a “hit” when the

19 applicant’s name is mentioned in FBI records because he has been an innocent witness or victim

20 of a crime, has undergone an employment-related security clearance in the past, or has assisted

21 the FBI in an investigation. Thus, since 2002, the FBI name check has not been effectively

22 implemented to uncover national security risks, criminal conduct, or other wrongdoing.

23

34. The FBI name check procedure is also highly likely to result in false positive

24 results because the FBI runs not only a naturalization applicant’s actual name, but also various

25 alternate spellings and permutations of the applicant’s given and family names.

26

35. Plaintiffs are informed and believe that CIS does not adjudicate applications for

27 naturalization until it receives a completed FBI name check. Neither CIS nor the FBI imposes

28 any binding time limits for completion of FBI name checks. As a result of their policies,
9
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1 practices and procedures, including their failure to require FBI name checks to be completed in a

2 reasonable time period, Defendants are responsible for systemic, years-long delays in

3 adjudicating tens of thousands of naturalization applications nationwide, including those

4 submitted by Plaintiffs.

5

36. Although Defendants have asserted that the FBI name checks are necessary for

6 national security, there is no justification for delays in the FBI name check process. Delays in

7 the FBI name check process do not serve the interest of national security. Indeed, as the CIS

8 Ombudsman has reported, “the current USCIS name check policy may increase the risk to

9 national security by prolonging the time a potential criminal or terrorist remains in the country.”

10 CIS Ombudsman, Annual Report 2006 at 25 (emphasis added), available at

11 http://www.dhs.gov/xlibrary/assets/CISOmbudsman_AnnualReport_2006.pdf. In his most

12 recent annual report, the CIS Ombudsman expressed his “agree[ment] with the assessment of

13 many case workers and supervisors at USCIS field offices and service centers that the FBI name

14 check process has limited value to public safety or national security, especially because in almost

15 every case the applicant is in the United States during the name check process, living or working

16 without restriction.” CIS Ombudsman, Annual Report 2007 at 40.

17

37. Upon information and belief, CIS has not reported any instance of a security

18 threat discovered through an FBI name check that was not also disclosed through criminal

19 background checks such as the fingerprint check and IBIS database check. The CIS

20 Ombudsman has questioned CIS’s claims that the FBI name check provides information that is

21 not otherwise available through other, existing background checks in the naturalization process.

22 In his 2007 annual report, the CIS Ombudsman states: “It is unclear how many of the FBI name

23 check ‘responses’ also were revealed by one or more of the other security checks conducted for

24 the [naturalization] applications. To date, the Ombudsman has been unable to ascertain from

25 USCIS the total number of actual problem cases that the agency discovered exclusively as a

26 result of the FBI name check. The Ombudsman understands that most, if not all, of the problem

27 cases which would result in an eventual denial of benefits also can be revealed by the other more

28 efficient, automated criminal and security checks that USCIS initiates.” CIS Ombudsman,
10
THIRD AMENDED COMPLAINT No. 07-CV-3455-WHA

Case3:07-cv-03455-WHA Document79 Filed05/15/08 Page11 of 18

1 Annual Report 2007, at 41.

2

FACTS

3 Plaintiffs

4

38. Amir Sayed is a 47-year-old native and citizen of Pakistan. He became a lawful

5 permanent resident of the United States in 2000, based upon the petition of his wife, who is a

6 U.S. citizen.

7

39. Mr. Sayed lives in Oakland, California, with his wife of nine years. Mr. Sayed is

8 employed as the Chief Executive Officer of three small businesses, Pacific Fleet and Leasing, an

9 automobile leasing company; Pacific E-Port Trading, an import-export business; and Pacific

10 Fleece and Apparel, a clothing import business. Mr. Sayed also is a part-owner of the first two

11 companies.

12

40. In or about June 2004, Mr. Sayed applied for citizenship. He successfully

13 completed his naturalization interview and criminal background checks on or about February 7,

14 2005. He meets all other statutory requirements for naturalization.

15

41. At the end of his naturalization interview, a CIS officer told Mr. Sayed that he had

16 passed his examination and that he should expect a notice of oath ceremony within a few days.

17

42. To date, CIS has failed to adjudicate Mr. Sayed’s naturalization application. In

18 the two years since passing his examination in February 2005, Mr. Sayed has visited the CIS

19 office in Oakland at least twice, and was told that his application is pending due to a name check.

20 Mr. Sayed also has emailed CIS on at least two occasions to inquire about the delay, but never

21 received any response. In or about February 2007, Mr. Sayed wrote to CIS to inquire formally

22 about the delay in his naturalization and received a form letter informing him that his application

23 was still pending due to a name check. Mr. Sayed’s private attorney, who is a family friend,

24 wrote to CIS in or about February 2008 and received a similar form letter advising that Mr.

25 Sayed’s application is being delayed due to a name check.

26

43. Mr. Sayed has suffered serious prejudice from the delay in adjudication of his

27 naturalization application. One of his employers, Pacific E-Port Trading, has recently opened a

28 satellite office in Vietnam and Mr. Sayed will be required to travel there on business frequently.
11
THIRD AMENDED COMPLAINT No. 07-CV-3455-WHA

Case3:07-cv-03455-WHA Document79 Filed05/15/08 Page12 of 18

1 As a citizen of Pakistan, it has been difficult for him to arrange a visa to travel to Vietnam and

2 for other countries through which he must pass en route to Vietnam. Although Mr. Sayed has

3 obtained the necessary visas for one upcoming business trip with great difficulty, he will

4 continue to face difficulty in obtaining visas in the future. Mr. Sayed is informed and believes

5 that if he were a U.S. citizen, he would not face difficulties in obtaining a visa for travel to

6 Vietnam and other Asian countries.

7

44. Biren Shah is a 39-year-old native and citizen of India. He came to the United

8 States in or about June 1995 as an H1-B visa holder, sponsored by his then-employer HCL

9 America. He became a lawful permanent resident of the United States in or about March 1999

10 through the sponsorship of another employer, Tekedge Corporation.

11

45. Mr. Shah lives in San Jose, California with his wife, who is also a lawful

12 permanent resident seeking citizenship, and his two U.S. citizen children, ages six and eleven.

13 Mr. Shah is employed by Electronic Data Systems Corporation in Mountain View, where he has

14 worked as a lead database administrator for approximately six years. During his nearly 13 years

15 in the United States, Mr. Shah has worked at several Silicon Valley firms as a software engineer.

16

46. In or about January 2004, Mr. Shah applied for citizenship. He successfully

17 completed his criminal background checks and passed his naturalization application in or about

18 May 2005. He meets all other statutory requirements for naturalization. At the end of Mr.

19 Shah’s naturalization examination, a CIS officer informed him that he had passed the

20 examination, including the English language and U.S. history and civics tests, but that his

21 application could not be adjudicated because of a pending FBI name check.

22

47. During the pendency of his naturalization application, Mr. Shah has made

23 repeated inquiries of CIS about the delay in his naturalization. CIS has responded by informing

24 Mr. Shah that his background or name checks are pending. In or about December 2005, Mr.

25 Shah filed a Freedom of Information/Privacy Act request with the Federal Bureau of Information

26 and received a response indicating that he has never been “of investigatory interest” to the FBI.

27 In addition, Mr. Shah has sought the assistance of Senators Dianne Feinstein and Barbara Boxer

28 and U.S. Representative Mike Honda. He has also written to President Bush, First Lady Laura
12
THIRD AMENDED COMPLAINT No. 07-CV-3455-WHA

Case3:07-cv-03455-WHA Document79 Filed05/15/08 Page13 of 18

1 Bush, and Vice President Dick Cheney regarding the delay of his naturalization application.

2 Despite inquiries made by Mr. Shah’s Congressional representatives and others on his behalf,

3 CIS has failed to adjudicate his application.

4

48. Mr. Shah desires to take his family for an extended visit to India to be with his

5 parents, but he has been unable to without jeopardizing his naturalization application by

6 interrupting his physical presence in the United States.

7

49. Mieke Vandewalle-Callinan is a 36-year old native and citizen of Belgium. She

8 came to the United States as a fiancée visa-holder in 1992. She married Sean Michael Callinan,

9 a U.S. citizen, on February 29, 1992, and they petitioned for her adjustment of status. On March

10 24, 1992, she became a lawful permanent resident. She and her husband divorced on May 3,

11 2000. Ms. Vandewalle-Callinan has been working at Grand Jean Capital Management, an

12 investment company in San Francisco, for six years as a data manager. She has been living in

13 the Bay Area for approximately eleven years.

14

50. In or about January 2004, Ms. Vandewalle-Callinan submitted her citizenship

15 application. She successfully completed criminal background checks and passed her

16 naturalization examination on August 12, 2004. She meets all other statutory requirements for

17 naturalization. At the end of her interview, the CIS officer informed her that she passed the tests

18 for English and U.S. history and government.

19

51. In 2004, following the interview date, Ms. Vandewalle-Callinan contacted CIS

20 about every two to three months to inquire about the status of her citizenship application. Since

21 the interview, she has made a total of ten to fifteen inquiries with Citizenship and Immigration

22 Services through phone calls, in-person visits to the CIS office, and letters. On each occasion,

23 she has been informed by CIS that her application was pending because of national security

24 checks.

25

26

27

28
13
THIRD AMENDED COMPLAINT No. 07-CV-3455-WHA

Case3:07-cv-03455-WHA Document79 Filed05/15/08 Page14 of 18

1

CAUSES OF ACTION

2

COUNT ONE

3

RIGHT TO DE NOVO JUDICIAL DETERMINATION

4

OF APPLICATION FOR NATURALIZATION

5

8 U.S.C. § 1447(b)

6

[By the Plaintiffs Against Defendants Still, Gonzalez and Chertoff]

7

52. The allegations contained in paragraphs 1 through 51 above are repeated and

8 incorporated as though fully set forth herein.

9

53. Because Defendants Still, Gonzalez and Chertoff have failed to adjudicate the

10 naturalization applications of Plaintiffs within 120 days after the date of his or her naturalization

11 examination, each of them is entitled to de novo adjudication of his or her naturalization

12 application by this Court under 8 U.S.C. § 1447(b).

13

54. This Court should grant the naturalization applications of each of the Plaintiffs

14 pursuant to 8 U.S.C. § 1447(b), because each of them meets all of the requirements for

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

16 and therefore has a right to become a naturalized citizen of the United States.

17

COUNT TWO

18

UNREASONABLE DELAY

19

IN VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT

20

[By the Plaintiffs Against Defendants Mukasey and Mueller]

21

55. The allegations contained in paragraphs 1 through 54 above are repeated and

22 incorporated as though fully set forth herein.

23

56. The Administrative Procedure Act requires administrative agencies to conclude

24 matters presented to them “within a reasonable time.” 5 U.S.C. § 555. A district court reviewing

25 agency action may “compel agency action unlawfully withheld or unreasonably delayed.” 5

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

27 found to be: “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

28 law,” 5 U.S.C. § 706(2)(A); “in excess of statutory jurisdiction, authority, or limitations, or short
14
THIRD AMENDED COMPLAINT No. 07-CV-3455-WHA

Case3:07-cv-03455-WHA Document79 Filed05/15/08 Page15 of 18

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

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

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

4

57. The failure of Defendants Mukasey and Mueller to complete FBI name checks for

5 Plaintiffs Sayed, Shah and Vandewalle-Callinan within a reasonable time period, with the full

6 knowledge that CIS requires the completion of such FBI name checks for adjudication of their

7 applications for naturalization, violates the Administrative Procedure Act, 5 U.S.C. § 555(b); 5

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

9

58. Plaintiffs have suffered and continue to suffer injury from the actions and

10 omissions of Defendants Mukasey and Mueller and are entitled to injunctive relief requiring

11 Defendants Mukasey and Mueller to complete their FBI name checks and to submit the results to

12 CIS.

13

COUNT THREE

14

WRIT OF MANDAMUS

15

28 U.S.C. § 1361

16

[By the Plaintiffs Against Defendants Still, Gonzalez and Chertoff]

17

59. The allegations contained in paragraphs 1 through 58 above are repeated and

18 incorporated as though fully set forth herein.

19

60. Defendants Mukasey and Mueller have a ministerial duty to the Plaintiffs to

20 timely complete the FBI name checks required by CIS for their naturalization. They have failed

21 in that duty.

22

61. Plaintiffs have no adequate remedy at law for the failure of Defendants Mukasey

23 and Mueller to timely complete the FBI name checks required for naturalization.

24

62. The Court should grant relief in the form of a writ of mandamus compelling

25 Defendants Mukasey and Mueller to complete the FBI name checks required by CIS for

26 Plaintiffs’ naturalization.

27

28
15
THIRD AMENDED COMPLAINT No. 07-CV-3455-WHA

Case3:07-cv-03455-WHA Document79 Filed05/15/08 Page16 of 18

1

PRAYER FOR RELIEF

2

WHEREFORE, in view of the arguments and authority noted herein, Plaintiffs pray for

3 the following relief:

4

(1)

Assume jurisdiction over the matter;

5

(2)

Review de novo and grant the applications for naturalization of Plaintiffs

6

Sayed, Shah and Vandewalle-Callinan, pursuant to 8 U.S.C. § 1447(b);

7

(3)

To the extent the Court deems necessary for the granting of relief under 8

8

U.S.C. § 1447(b), order injunctive relief requiring Defendants Mukasey

9

and Mueller to complete immediately the FBI name checks for each of the

10

Plaintiffs pursuant to the Administrative Procedure Act, 5 U.S.C. §§

11

555(b), 706(1), 706(2)(A), 706(2)(C), and 706(2)(D).

12

(4)

In the alternative to granting injunctive relief under the Administrative

13

Procedure Act, and to the extent the Court deems necessary for the

14

granting of relief under 8 U.S.C. § 1447(b), compel Defendants Mukasey

15

and Mueller to complete immediately the FBI name checks for each of the

16

Plaintiffs pursuant to the Court’s mandamus authority under 28 U.S.C. §

17

1361;

18

(5)

Award reasonable attorney fees and costs pursuant to the Equal Access to

19

Justice Act, 5 U.S.C. § 504, 28 U.S.C. § 2412; and

20

(6)

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

21

22

23

24

25

26

27

28
16
THIRD AMENDED COMPLAINT No. 07-CV-3455-WHA

Case3:07-cv-03455-WHA Document79 Filed05/15/08 Page17 of 18

1 Dated: May 15, 2008 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

Respectfully submitted,
CECILLIA D. WANG LUCAS GUTTENTAG AMERICAN CIVIL LIBERTIES UNION
FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111
JULIA HARUMI MASS ALAN L. SCHLOSSER AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111
SIN YEN LING JOREN LYONS ASIAN LAW CAUCUS 939 Market Street, Suite 201 San Francisco, CA 94103 Telephone: (415) 896-1701 Facsimile: (415) 896-1702
TODD GALLINGER Of Counsel COUNCIL ON AMERICAN-ISLAMIC
RELATIONS (CAIR) – SAN FRANCISCO BAY AREA 3000 Scott Boulevard, Suite 212 Santa Clara, CA 95054 Telephone: (408) 986-9874 Facsimile: (408) 986-9875
By: _________/s/_______________________ CECILLIA D. WANG
Attorneys for Plaintiffs
17
THIRD AMENDED COMPLAINT No. 07-CV-3455-WHA

Case3:07-cv-03455-WHA Document79 Filed05/15/08 Page18 of 18

1

CERTIFICATE OF SERVICE

2 I, Cecillia D. Wang, declare as follows:

3

I hereby certify that today I electronically filed the foregoing THIRD AMENDED

4 COMPLAINT with the Clerk of the Court using the ECF system, which will send notification of

5 such filing to the following email addresses:

6

Alan Lawrence Schlosser

Via ECF

American Civil Liberties Union

at aschlosser@aclunc.org

7

Foundation of Northern California

8

Joren Lyons

Via ECF

Asian Law Caucus

at

joren@asianlawcaucus.org

9

Lucas Guttentag

Via ECF

10

American Civil Liberties Union

at lguttentag@aclu.org

Immigrants’ Rights Project

11

Julia Harumi Mass

Via ECF

12

American Civil Liberties Union

at jmass@aclunc.org

Foundation of Northern California

13

Edward A. Olsen

Via ECF

14

United States Attorney’s Office

at edward.olsen@usdoj.gov

15

Elizabeth J. Stevens

Via ECF

United States Department of Justice

at elizabeth.stevens@usdoj.gov

16

Jeffrey S. Robins

Via ECF

17

United States Department of Justice

at jeffrey.robins@usdoj.gov

18

In addition, I hereby certify that on this 15th day of May 2008, true and correct copies of

19 the THIRD AMENDED COMPLAINT were served by U.S. Mail on the following non-ECF

20 filers:

21

Sin Yen Ling

Todd Gallinger

Asian Law Caucus

Council on American-Islamic Relations

22

939 Market Street, Suite 201

3000 Scott Boulevard, Suite 212

San Francisco, CA 94103 23

Santa Clara, CA 95054

24

I declare under penalty of perjury under the laws of the State of California that the above

25 is true and correct.

26

Dated: May 15, 2008 San Francisco, California

27

28

CECILLIA

_________/s/______________ D. WANG

 
 1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9

United States District Court For the Northern District of California

10 AMIR SAYED, BIREN SHAH, and MIEKE 11 VANDEWALLE-CALLINAN,

12

Plaintiffs,

13

v.

14

MICHAEL CHERTOFF, United States Secretary of Homeland Security; ROBERT S. MUELLER

15

III, Director of the Federal Bureau of Investigation; MICHAEL MUKASEY, Attorney

16

General of the United States; JONATHAN SCHARFEN, Acting Director, United States

17

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

18

STILL, District Director, United States Department of Homeland Security, Bureau of

19

Citizenship and Immigration Services, San Francisco District,

20

Defendants.

21

/

No. C 07-03455 WHA
ORDER: (1) GRANTING PLAINTIFF’S REQUEST FOR VOLUNTARY DISMISSAL; (2) GRANTING IN PART DEFENDANTS’ MOTION TO REMAND; AND (3) GRANTING PLAINTIFF’S REQUEST TO DISMISS SECOND AND THIRD CLAIMS AS MOOT

22

INTRODUCTION

23

In this action concerning naturalization petitions, federal defendants move to dismiss

24 in part, remand in part, and strike in part plaintiff’s third amended complaint.

25 Plaintiffs Biren Shah, Amir Sayed, and Mieke Vandewalle-Callinan have faced long delays

26 in the adjudication of their naturalization applications by United States Citizenship and

27 Immigration Services. Plaintiffs request de novo judicial review of their naturalization

28 applications pursuant to 8 U.S.C. 1447(b). Plaintiffs also seek injunctive relief under the

United States District Court For the Northern District of California

1 Administrative Procedures Act and mandamus. For the reasons stated below, plaintiff’s request

2 to voluntarily dismiss plaintiff Shah is GRANTED. Plaintiffs’ request to dismiss the APA and

3 mandamus claims as moot is also GRANTED. Defendants’ motion to remand is GRANTED IN

4 PART. This matter is hereby remanded to CIS with an instruction to adjudicate the

5 naturalization applications of plaintiffs Sayed and Vandewalle-Callinan by a target date of

6 AUGUST 1, 2008, with a hard deadline of AUGUST 18, 2008.

7

STATEMENT

8

This order must accept as true all well-pled allegations of fact. Plaintiffs Amir Sayed,

9 Biren Shah, and Mieke Vandewalle-Callinan are long-time, lawful residents of the

10 United States. Each is in the process of applying for naturalization and claims to meet all

11 statutory requirements. Each filed their application in 2004. None of their applications,

12 however, has been adjudicated. Allegedly, this is because they are among tens of thousands of

13 applicants suffering from systemic delays in the naturalization process caused by the policies,

14 practices, and procedures instituted by defendants Michael Chertoff, Robert S. Mueller III,

15 Michael Mukasey, Jonathan Scharfen, and David Still.

16

Plaintiffs allege that these delays result from a requirement known as an FBI

17 “name check.” The name check runs an applicant’s name against an FBI database containing

18 all the names of persons who are or were the subjects of FBI investigations. According to

19 plaintiffs, this database is wildly overinclusive. It contains not only the names of criminals,

20 suspects, and targets of investigations, but also countless innocent persons whose names are

21 merely mentioned in FBI files, such as crime victims and witnesses. Plaintiffs allege that CIS

22 will not process an application for naturalization unless the name check is completed.

23

Plaintiffs allege that they have completed their naturalization interviews with CIS and

24 that CIS failed to give them a decision within 120 days of the date of the interview. Because of

25 the name-check requirement, adjudication of plaintiffs’ applications has been delayed for over

26 four years. Plaintiffs are allegedly prejudiced because of the uncertainty associated with the

27 process and their inability to participate fully as United States citizens.

28

2

United States District Court For the Northern District of California

1

This action was originally filed on July 2, 2007. Plaintiffs filed a first amended

2 complaint on August 10, 2007. Plaintiffs sought de novo judicial determination of their

3 individual applications for naturalization pursuant to 8 U.S.C. 1447(b), as well as declaratory

4 and injunctive relief on a class-wide basis for those who had also satisfied the statutory

5 requirements and were suffering similar delays. The class claims for declaratory and injunctive

6 relief were: (i) unreasonable delay in violation of the APA; (ii) failure to follow

7 notice-and-comment procedures in violation of the APA; and (iii) violations of the Fifth

8 Amendment’s due process clause.

9

An order dated October 15, 2007, granted in part and denied in part defendants’ motion

10 to dismiss. The order held that this Court had jurisdiction over plaintiffs’ individual claims

11 under 8 U.S.C. 1447(b) because more than 120 days had passed since plaintiffs’ naturalization

12 interviews, thus rejecting defendants’ argument that the 120-day clock did not start to run until

13 after the name check was completed. The order denied defendants’ motion to dismiss for lack

14 of jurisdiction over the individual 8 U.S.C. 1447(b) claims and likewise declined to remand the

15 applications back to CIS without instructions. The order granted defendants’ motion to dismiss

16 the three class claims filed under the APA and due process clause. The order, however, denied

17 defendants’ motion to strike plaintiffs’ claims for injunctive relief, finding that such a ruling

18 would be inappropriate at that time.

19

On November 15, 2007, plaintiffs filed a second amended complaint. They added

20 new plaintiffs but did not amend the class claims dismissed by the October 15 order.

21 Plaintiffs moved for leave to file a third amended complaint on March 13, 2008.

22 Plaintiffs sought to add the three plaintiffs involved in the instant matter and to reintroduce

23 four plaintiffs “inadvertently omitted” from the second amended complaint whose individual

24 8 U.S.C. 1447(b) claims had been dismissed pursuant to stipulation. Plaintiffs simultaneously

25 moved for class certification and for entry of final judgment under FRCP 54(b) with respect to

26 the APA and due process claims dismissed by the October 15 order.

27

An order dated April 25, 2008, (i) granted plaintiffs leave to add the three new plaintiffs

28 but not to reintroduce the four previously-dismissed plaintiffs; (ii) denied plaintiffs’ motion for

3

United States District Court For the Northern District of California

1 class certification; and (iii) granted plaintiffs’ motion for entry of partial judgment.

2 Plaintiffs filed a third amended complaint on May 15. The complaint contained three claims.

3 First, plaintiffs sought de novo judicial determination of their individual applications for

4 naturalization pursuant to 8 U.S.C. 1447(b). Second, plaintiffs sought injunctive relief, alleging

5 unreasonable delay in violation of the APA. This claim was alleged against defendants

6 Mukasey and Mueller for failure to complete the name checks within a reasonable time period.

7 Lastly, plaintiffs filed a claim for a writ of mandamus compelling Mukasey and Mueller to

8 timely complete the name checks as required by CIS.

9

On May 30, 2008, defendants filed a motion to dismiss in part, remand in part, and

10 strike in part plaintiff’s third amended complaint. Specifically, defendants sought to:

11 (i) dismiss plaintiff Shah from the first claim pursuant to FRCP 12(b)(1); (ii) remand the

12 naturalization applications of plaintiffs Sayed and Vandewalle-Callinan to CIS pursuant to

13 8 U.S.C. 1447(b); and (iii) strike the second and third claims under FRCP 12(f).

14

ANALYSIS

15

1.

MOTION TO DISMISS IN PART.

16

Defendants argue that the first claim should be dismissed as to plaintiff Shah under

17 FRCP 12(b)(1). According to defendants, this claim is moot because CIS adjudicated Shah’s

18 naturalization application, thereby granting him the relief he sought. Shah requests that the

19 claim be voluntarily dismissed under FRCP 41(a)(2). Dismissal is necessary for Shah to take

20 his oath of citizenship, which is scheduled for July 24, 2008. See United States v. Hovsepian,

21 359 F.3d 1141, 1151 (9th Cir. 2004) (en banc). Plaintiffs’ request for voluntary dismissal is

22 hereby GRANTED.

23

2.

MOTION TO REMAND IN PART.

24

Defendants request that the claims of plaintiffs Sayed and Vandewalle-Callinan seeking

25 relief pursuant to 8 U.S.C. 1447(b) be remanded to CIS. Section 1447(b) provides that if CIS

26 has not adjudicated a naturalization application within 120 days of examining the applicant, the

27 applicant may apply to the district court for the district in which the applicant resides for a

28 hearing on the matter. The district court “has jurisdiction over the matter and may either

4

United States District Court For the Northern District of California

1 determine the matter or remand the matter, with appropriate instructions, to [CIS] to determine

2 the matter.”

3

The FBI has completed background checks for both plaintiffs and both plaintiffs have

4 been interviewed. CIS has received all requested information and is now prepared to adjudicate

5 the naturalization applications of both plaintiffs (Second Ricks Decl. ¶¶ 3–4). The parties have

6 attempted, but failed, to reach a stipulation in which plaintiffs would agree to voluntary

7 dismissal contingent on the granting of plaintiff’s naturalization applications within thirty days

8 (Mass Decl. ¶¶ 5–7).

9

In their motion, defendants ask that this matter be remanded to CIS without instructions.

10 They argue that “[n]o instructions are necessary where [CIS] is prepared to adjudicate the

11 applications upon remand, and an instruction requiring that [CIS] grant the applications would

12 be improper” (Reply Br. 9). Defendants cite no authority demonstrating the propriety of

13 remanding without instructions. Plaintiffs oppose defendants’ motion. They request that the

14 Court exercise de novo review of their petitions or, in the alternative, remand the matter to CIS

15 with instructions to grant naturalization immediately.

16

While this order is sympathetic to the long delays plaintiffs have faced, it is not clear

17 that they will obtain a more expeditious result from this Court. Given that plaintiffs’

18 administrative record has not yet been filed with the Court, and the Court would likely have to

19 conduct a de novo hearing following receipt of the record and any discovery by the parties,

20 this order concludes that CIS is in the best position to expeditiously determine this matter.

21 See Huynh v. Mukasey, 2008 WL 1338738, *3 (W.D. Wash. 2008); See also Karsch v. Chertoff,

22 2007 WL 3228104, *1 (W.D. Wash. 2007) (stating that in order to retain jurisdiction and

23 adjudicate the plaintiff’s naturalization application, the court would have to conduct a de novo

24 hearing following discovery by the parties).*

25

This order agrees with plaintiffs, however, that a remand to CIS without instructions

26 would be inappropriate. That CIS is prepared to adjudicate plaintiffs’ naturalization

27
* Moreover, this Court is currently in the midst of a four-week patent trial that would further hinder its
28 ability to swiftly adjudicate this matter. This order believes that the interests of both parties will best be served
by a remand to CIS.

5

United States District Court For the Northern District of California

1 applications does not provide a basis for remanding without instructions. See, e.g., Huynh,

2 2008 WL 1338738, at *3 (remanding to CIS with an instruction to adjudicate a plaintiff’s

3 naturalization application within ten business days where CIS was prepared to adjudicate the

4 application). As such, the matter is hereby remanded to CIS with an instruction to adjudicate

5 the naturalization applications of plaintiffs Sayed and Vandewalle-Callinan by a target date of

6 August 1, 2008, and in any event no later than August 18, 2008. Once CIS has adjudicated

7 the naturalization applications, defendants shall file an affidavit with this Court demonstrating

8 compliance. This matter shall remain open pending receipt of that affidavit. Defendants’

9 motion for remand is hereby GRANTED IN PART.

10

3.

MOTION TO STRIKE IN PART.

11

Defendants move to strike plaintiffs’ second and third claims pursuant to FRCP 12(f).

12 The second claim alleges unreasonable delay in processing the FBI name checks in violation

13 of the APA while the third claim seeks a writ of mandamus compelling defendants to timely

14 complete the name checks. Defendants contend that these claims are immaterial and

15 impertinent as they were raised for the first time in the third amended complaint without leave

16 of this Court and without notice to defendants. Plaintiffs do not oppose dismissal, but argue

17 that the claims should be dismissed as moot based on defendants’ representation that the FBI

18 name checks for all three plaintiffs have been completed. In their reply, defendants agree that

19 mootness provides a valid basis for the dismissal of these claims. Without deciding the

20 propriety of striking these claims, this order concurs with the parties that the second and third

21 claims are moot. Accordingly, plaintiffs’ request to dismiss said claims as moot is GRANTED.

22

CONCLUSION

23

For the foregoing reasons, plaintiffs’ request for voluntary dismissal of the first claim as

24 to plaintiff Shah is GRANTED. Plaintiffs’ request to dismiss the second and third claims as moot

25 is also GRANTED. Plaintiffs have agreed to dismissal of the second and third claims having

26 relied on declarations provided by defendants that the FBI name checks have been completed.

27 Accordingly, the second and third claims are DISMISSED WITH LEAVE TO AMEND.

28 Finally, defendants’ motion to remand is GRANTED IN PART. This matter is remanded to CIS

6

United States District Court For the Northern District of California

1 with an instruction that the agency adjudicate the naturalization applications of plaintiffs Sayed

2 and Vandewalle-Callinan by a target date of AUGUST 1, 2008, with a hard deadline of

3 AUGUST 18, 2008 . Once the naturalization applications have been adjudicated, defendants

4 shall file an affidavit with this Court demonstrating compliance. The matter shall remain open

5 pending receipt by the Court of that affidavit. It is requested that plaintiffs Sayed and

6 Vandewalle-Callinan be scheduled for the next available oath of citizenship ceremony

7 following adjudication of their naturalization applications, assuming that they are granted.

8

9

IT IS SO ORDERED.

10

11 Dated: July 18, 2008. 12

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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7

 
 Case3:07-cv-03455-WHA Document81 Filed05/30/08 Page1 of 12

1 JOSEPH P. RUSSONIELLO United States Attorney
2 JOANN M. SWANSON, CSBN 88143 Assistant United States Attorney
3 Chief, Civil Division EDWARD A. OLSEN, CSBN 214150
4 Assistant United States Attorney

5

450 Golden Gate Avenue, Box 36055

San Francisco, California 94102

6

Telephone: (415) 436-6915

FAX: (415) 436-6927

7

GREGORY G. KATSAS

8 United States Department of Justice

Acting Assistant Attorney General, Civil Division

9 ELIZABETH J. STEVENS VSBN 47445

Assistant Director, District Court Section

10 Office of Immigration Litigation

JEFFREY S. ROBINS NY SBN 4355244

11 Trial Attorney, District Court Section

12

P.O. Box 868, Ben Franklin Station

Washington, D.C. 20044

13

Telephone: (202) 616-1246

FAX: (202) 305-7000

14

Attorneys for Defendants

15

16

UNITED STATES DISTRICT COURT

17

NORTHERN DISTRICT OF CALIFORNIA

18

SAN FRANCISCO DIVISION

19 AMIR SAYED, et al.,

20

Plaintiffs,

21

v.

22 MICHAEL CHERTOFF, et al.,

23 Defendants.
24

) No. C-07-3455-WHA ) ) DEFENDANTS’ ANSWER TO ) PLAINTIFFS’ THIRD AMENDED ) COMPLAINT ) ) ) ) ) )

25

26

27

28

Defendants’ Answer To Plaintiffs’ Third Amended Complaint - C-07-3455-WHA

Case3:07-cv-03455-WHA Document81 Filed05/30/08 Page2 of 12

1

COME NOW the Defendants, by and through the undersigned counsel, and submit this

2 Answer to the Plaintiffs’ Third Amended Complaint.

3

INTRODUCTION

4 1. This paragraph sets forth Plaintiffs’ portrayal of the action, including their legal

5 conclusions. Defendants object to the characterizations of their actions and to every legal

6 conclusion set forth by Plaintiffs. To the extent that a responsive pleading is required, Defendants

7 admit that Plaintiffs Sayed, Shah, and Vandewalle-Callinan, have been long-time lawful

8 permanent residents of the United States. Defendants deny the remaining allegations in

9 paragraph 1.

10 2. Admitted.

11 3. This paragraph sets forth Plaintiffs' portrayal of the action, including their legal

12 conclusions. Defendants object to the phrase "Defendant are engaging in rampant violations” of

13 USCIS regulations, as misleading and an erroneous characterization of Defendants' actions, and

14 further object to every legal conclusion set forth by Plaintiffs. To the extent a response is deemed

15 necessary, Defendants deny the allegations in paragraph 3.

16 4. This paragraph sets forth Plaintiffs’ portrayal of the procedural history of this action. To

17 the extent that a responsive pleading is required, Defendants admit the portrayal contained in

18 paragraph 4.

19 5. This paragraph sets forth Plaintiffs’ portrayal of the action, including their legal

20 conclusions. Defendants object to the characterizations of their actions and to every legal

21 conclusion set forth by Plaintiffs. To the extent that a responsive pleading is required, Defendants

22 admit that Plaintiffs Sayed, Shah, and Vandewalle-Callinan, have been long-time lawful

23 permanent residents of the United States, have applied for naturalization, completed their

24 naturalization interviews, and successfully passed the English and civics portions of their

25 naturalization exams. Defendants specifically deny that each Plaintiff continues to await

26 adjudication of his or her application, that each Plaintiff has cleared criminal background checks,

27 and deny the remaining allegations in paragraph 5.

28

Defendants’ Answer To Plaintiffs’ Third Amended Complaint - C-07-3455-WHA
1

Case3:07-cv-03455-WHA Document81 Filed05/30/08 Page3 of 12
1 6. This paragraph sets forth Plaintiffs' portrayal of the action, including their legal 2 conclusions. Defendants object to the characterizations of their actions and to every legal 3 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants admit 4 only that 8 U.S.C. § 1447(b) provides that a district court may make a determination on an 5 application for naturalization if no adjudication occurs within 120 days of the examination. 6 7. This paragraph sets forth Plaintiffs' portrayal of the action, including their legal 7 conclusions. Defendants maintain that the allegations contained in this paragraph should be 8 stricken pursuant to Defendants’ Motion to Dismiss in Part, Remand in Part, and Strike in Part, 9 filed on May 30, 2008. To the extent a response is deemed necessary, Defendants deny the 10 allegations in paragraph 7. 11 8. This paragraph sets forth Plaintiffs' portrayal of the action, including their legal 12 conclusions. Defendants maintain that the allegations contained in this paragraph should be 13 stricken pursuant to Defendants’ Motion to Dismiss in Part, Remand in Part, and Strike in Part, 14 filed on May 30, 2008. To the extent a response is deemed necessary, Defendants deny the 15 allegations in paragraph 8. 16 9. This paragraph sets forth Plaintiffs' portrayal of the action, including their legal 17 conclusions. No response is needed, although Defendants object to the characterizations of their 18 actions and to every legal conclusion set forth by Plaintiffs. To the extent a response is deemed 19 necessary, Defendants deny that Plaintiffs Sayed and Vandewalle-Callinan have met all statutory 20 requirements for naturalization. Defendants lack sufficient information or knowledge to form a 21 belief as to the truth of the remaining allegations in paragraph 9. 22 10. This paragraph sets forth Plaintiffs' portrayal of the action, including their legal 23 conclusions. No response is needed, although Defendants object to the characterizations of their 24 actions and to every legal conclusion set forth by Plaintiffs. Defendants deny the first and second 25 sentence of paragraph 10. Defendants lack sufficient information or knowledge to form a belief as 26 to the truth of the remaining allegations in paragraph 10, which allegations are therefore denied. 27 28
Defendants’ Answer To Plaintiffs’ Third Amended Complaint - C-07-3455-WHA
2

Case3:07-cv-03455-WHA Document81 Filed05/30/08 Page4 of 12

1

JURISDICTION AND VENUE

2 11. This paragraph sets forth conclusions of law to which no response is required. To the

3 extent that a responsive pleading is required, Defendants admit only that 8 U.S.C. § 1447(b)

4 confers jurisdiction over certain naturalization applications.

5 12. This paragraph sets forth Plaintiffs' portrayal of the action, including their legal

6 conclusions. Defendants object to the characterizations of their actions and to every legal

7 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants admit

8 that venue lies within the Northern District of California.

9

THE PARTIES

10 13. Admitted.

11 14. Defendants admit the first two sentences of paragraph 14, but deny that Plaintiff Shah’s

12 naturalization application has not be adjudicated.

13 15. Admitted.

14 16. Admitted

15 17. Admitted.

16 18. Admitted.

17 19. Admitted.

18 20. Admitted.

19

LEGAL FRAMEWORK

20 21. Admitted.

21 22. Admitted.

22 23. Admitted.

23 24. Admitted.

24 25. Admitted.

25 26. This paragraph sets forth Plaintiffs' portrayal of the action, including their legal

26 conclusions. Defendants object to the characterizations of their actions and to every legal

27 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants admit

28 the first sentence of paragraph 26, and deny the second sentence of paragraph 26.

Defendants’ Answer To Plaintiffs’ Third Amended Complaint - C-07-3455-WHA
3

Case3:07-cv-03455-WHA Document81 Filed05/30/08 Page5 of 12

1 27. This paragraph sets forth Plaintiffs' portrayal of the action, including their legal

2 conclusions. Defendants object to the characterizations of their actions and to every legal

3 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants deny

4 the first sentence of paragraph 27, and admit the second sentence of paragraph 27.

5 28. This paragraph sets forth Plaintiffs' portrayal of the action, including their legal

6 conclusions. Defendants object to the characterizations of their actions and to every legal

7 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants deny

8 the first sentence of paragraph 28, and admit the second sentence of paragraph 28.

9 29. Admitted.

10

PRE-NATURALIZATION BACKGROUND CHECKS

11 30. The allegations in paragraph 30 set forth conclusions of law to which no responsive

12 pleading is required. Defendants object to the characterizations of their actions and to every legal

13 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants

14 respectfully refer the Court to 8 C.F.R. § 335.2. Defendants admit the first two sentences of

15 paragraph 30, and admit the final sentence of paragraph 30. Defendants deny the third sentence of

16 paragraph 30.

17 31. The allegations in paragraph 31 set forth Plaintiffs' portrayal of the action, including their

18 legal conclusions. Defendants object to the characterizations of their actions and to every legal

19 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants admit

20 only that the Interagency Border Inspection System (“IBIS”) and the FBI name check are among

21 the name-based background checks performed upon each applicant for naturalization, and deny the

22 remaining allegations in paragraph 31.

23 32. The allegations in paragraph 32 set forth Plaintiffs' portrayal of the action, including their

24 legal conclusions. Defendants object to the characterizations of their actions. To the extent a

25 response is deemed necessary, Defendants admit the allegations in Paragraph 32.

26 33. The allegations in paragraph 33 set forth Plaintiffs' portrayal of the action, including their

27 legal conclusions. Defendants object to the characterizations of their actions and to every legal

28

Defendants’ Answer To Plaintiffs’ Third Amended Complaint - C-07-3455-WHA
4

Case3:07-cv-03455-WHA Document81 Filed05/30/08 Page6 of 12

1 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants deny

2 the allegations in paragraph 33.

3 34. The allegations in paragraph 34 set forth Plaintiffs' portrayal of the action, including their

4 legal conclusions. Defendants object to the characterizations of their actions and to every legal

5 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants deny

6 the allegations in paragraph 34.

7 35. The allegations in paragraph 35 set forth Plaintiffs' portrayal of the action, including their

8 legal conclusions. Defendants object to the characterizations of their actions and to every legal

9 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants are

10 admit the allegations in the first sentence of paragraph 35. Defendants are without knowledge

11 sufficient to admit or deny the allegations in the second sentence of paragraph 35, which

12 allegations are therefore denied. Defendants deny the remaining allegations in paragraph 35.

13 36. The allegations in paragraph 36 set forth Plaintiffs' portrayal of the action, including their

14 legal conclusions. Defendants object to the characterizations of their actions and to every legal

15 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants deny

16 the allegations in the first two sentences of paragraph 36. Defendants admit that the CIS

17 Ombudsman’s Report contains the quotations in the remainder of paragraph 36.

18 37. The allegations in paragraph 37 set forth Plaintiffs' portrayal of the action, including their

19 legal conclusions. Defendants object to the characterizations of their actions and to every legal

20 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants are

21 without knowledge sufficient to admit or deny the allegations in the first sentence of paragraph 37,

22 which allegations are therefore denied. Defendants admit that the CIS Ombudsman’s Report

23 contains the quotations in the remainder of paragraph 37.

24

FACTS

25 Plaintiffs

26 38. Admitted.

27 39. Defendants are without knowledge sufficient to admit or deny the allegations in this

28 paragraph, which allegations are therefore denied.

Defendants’ Answer To Plaintiffs’ Third Amended Complaint - C-07-3455-WHA
5

Case3:07-cv-03455-WHA Document81 Filed05/30/08 Page7 of 12
1 40. The allegations in paragraph 40 set forth Plaintiffs' portrayal of the action, including their 2 legal conclusions. Defendants object to the characterizations of their actions and to every legal 3 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants admit 4 that Plaintiff Sayed applied for citizenship in June 2004 and completed his naturalization 5 interview on or about February 7, 2005. Defendants are without knowledge sufficient to admit or 6 deny the remaining allegations in paragraph 40, which allegations are therefore denied. 7 41. Denied. 8 42. The allegations in paragraph 42 set forth Plaintiffs' portrayal of the action, including their 9 legal conclusions. Defendants object to the characterizations of their actions and to every legal 10 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants admit 11 that USCIS had not yet adjudicated Plaintiff Sayed’s naturalization application. Defendants are 12 without knowledge sufficient to admit or deny the remaining allegations in paragraph 42, which 13 allegations are therefore denied. 14 43. The allegations in paragraph 43 set forth Plaintiffs' portrayal of the action, including their 15 legal conclusions. Defendants object to the characterizations of their actions and to every legal 16 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants are 17 without knowledge sufficient to admit or deny the remaining allegations in paragraph 43, which 18 allegations are therefore denied. 19 44. Defendants admit the allegations contained in the first sentence of paragraph 44. 20 Defendants further admit that Plaintiff Shah came to the United States in or about June 1995 as an 21 H1-B visa holder, and that he become a lawful permanent resident in or about March 1999 through 22 the sponsorship of another employer. Defendants are without knowledge sufficient to admit or 23 deny the remaining allegations in paragraph 44, which allegations are therefore denied. 24 45. Defendants are without knowledge sufficient to admit or deny the allegations in this 25 paragraph, which allegations are therefore denied. 26 46. The allegations in paragraph 40 set forth Plaintiffs' portrayal of the action, including their 27 legal conclusions. Defendants object to the characterizations of their actions and to every legal 28 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants admit
Defendants’ Answer To Plaintiffs’ Third Amended Complaint - C-07-3455-WHA
6

Case3:07-cv-03455-WHA Document81 Filed05/30/08 Page8 of 12

1 that USCIS received Mr. Shah’s application for citizenship in February 2004, not January 2004;

2 that he was interviewed regarding his application in May 2005; and, as of the approval of his

3 naturalization application on May 15, 2008, that he met the statutory requirements for

4 naturalization. Defendants are without knowledge sufficient to admit or deny the remaining

5 allegations in this paragraph, which allegations are therefore denied.

6 47. Defendants are without knowledge sufficient to admit or deny the allegations in this

7 paragraph, which allegations are therefore denied.

8 48. Defendants are without knowledge sufficient to admit or deny the allegations in this

9 paragraph, which allegations are therefore denied.

10 49. Defendants admit that the first four sentences of paragraph 49. Defendants also

11 acknowledge that Ms. Vandewalle-Callinan produced to USCIS a copy of a Judgment and Notice

12 of Entry of Judgment that reflected the termination of her marriage as of May 3, 2000. Defendants

13 are without knowledge sufficient to admit or deny the remaining allegations in this paragraph,

14 which allegations are therefore denied.

15 50. The allegations in paragraph 50 set forth Plaintiffs' portrayal of the action, including their

16 legal conclusions. Defendants object to the characterizations of their actions and to every legal

17 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants admit

18 that Plaintiff Vandewalle-Callinan applied for citizenship in January 2004 and completed her

19 naturalization interview on August 12, 2004. Defendants are without knowledge sufficient to

20 admit or deny the remaining allegations in paragraph 50, which allegations are therefore denied.

21 51. Defendants are without knowledge sufficient to admit or deny the allegations in this

22 paragraph, which allegations are therefore denied.

23

CAUSES OF ACTION

24 Count One

25 52. Defendants reassert their preceding responses to Plaintiffs' allegations in paragraphs 1

26 through 51 as though fully set forth herein.

27 53. Denied. Defendants object to the characterizations of Defendants’ actions and to every

28 legal conclusion set forth by Plaintiffs.

Defendants’ Answer To Plaintiffs’ Third Amended Complaint - C-07-3455-WHA
7

Case3:07-cv-03455-WHA Document81 Filed05/30/08 Page9 of 12
1 54. Defendants object to every legal conclusion set forth by Plaintiffs, and deny that each 2 named Plaintiff has met all statutory requirements for naturalization. 3 Count Two 4 55. Defendants reassert their preceding responses to Plaintiffs' allegations in paragraphs 1 5 through 54 as though fully set forth herein. 6 56. Defendants maintain that the allegations contained in this paragraph should be stricken 7 pursuant to Defendants’ Motion to Dismiss in Part, Remand in Part, and Strike in Part, filed on 8 May 30, 2008. To the extent a response is deemed necessary, object to the characterizations of 9 Defendants’ actions and to every legal conclusion set forth by Plaintiffs, and Defendants deny the 10 allegations in paragraph 56. 11 57. Defendants maintain that the allegations contained in this paragraph should be stricken 12 pursuant to Defendants’ Motion to Dismiss in Part, Remand in Part, and Strike in Part, filed on 13 May 30, 2008. To the extent a response is deemed necessary, object to the characterizations of 14 Defendants’ actions and to every legal conclusion set forth by Plaintiffs, and Defendants deny the 15 allegations in paragraph 57. 16 58. Defendants maintain that the allegations contained in this paragraph should be stricken 17 pursuant to Defendants’ Motion to Dismiss in Part, Remand in Part, and Strike in Part, filed on 18 May 30, 2008. To the extent a response is deemed necessary, object to the characterizations of 19 Defendants’ actions and to every legal conclusion set forth by Plaintiffs, and Defendants deny the 20 allegations in paragraph 58. 21 Count Three 22 59. Defendants reassert their preceding responses to Plaintiffs' allegations in paragraphs 1 23 through 58 as though fully set forth herein. 24 60. Defendants maintain that the allegations contained in this paragraph should be stricken 25 pursuant to Defendants’ Motion to Dismiss in Part, Remand in Part, and Strike in Part, filed on 26 May 30, 2008. To the extent a response is deemed necessary, object to the characterizations of 27 Defendants’ actions and to every legal conclusion set forth by Plaintiffs, and Defendants deny the 28 allegations in paragraph 60.
Defendants’ Answer To Plaintiffs’ Third Amended Complaint - C-07-3455-WHA
8

Case3:07-cv-03455-WHA Document81 Filed05/30/08 Page10 of 12

1 61. Defendants maintain that the allegations contained in this paragraph should be stricken

2 pursuant to Defendants’ Motion to Dismiss in Part, Remand in Part, and Strike in Part, filed on

3 May 30, 2008. To the extent a response is deemed necessary, object to the characterizations of

4 Defendants’ actions and to every legal conclusion set forth by Plaintiffs, and Defendants deny the

5 allegations in paragraph 61.

6 62. Defendants maintain that the allegations contained in this paragraph should be stricken

7 pursuant to Defendants’ Motion to Dismiss in Part, Remand in Part, and Strike in Part, filed on

8 May 30, 2008. To the extent a response is deemed necessary, object to the characterizations of

9 Defendants’ actions and to every legal conclusion set forth by Plaintiffs, and Defendants deny the

10 allegations in paragraph 62.

11

PRAYER FOR RELIEF

12

The remainder of the complaint constitutes Plaintiffs’ request for relief to which no

13 responsive pleading is necessary. To the extent that a responsive pleading is required, Defendants

14 deny the prayer for relief. Defendants deny that Plaintiffs are entitled to the relief sought in the

15 complaint or to any relief whatsoever.

16

* * * * *

17 In addition, Defendants assert the following affirmative defenses:

18

FIRST AFFIRMATIVE DEFENSE

19

The Third Amended Complaint fails to state claims upon which relief can be granted.

20

SECOND AFFIRMATIVE DEFENSE

21

The Third Amended Complaint should be dismissed on the ground of mootness.

22

THIRD AFFIRMATIVE DEFENSE

23

The Third Amended Complaint is so general as to be insufficient to give Defendants fair

24 notice of whether Plaintiffs have standing to assert their claims.

25

FOURTH AFFIRMATIVE DEFENSE

26

The Third Amended Complaint should be summarily dismissed, as the named Plaintiffs

27 have failed to demonstrate that they meet all the statutory requirements for naturalization.

28

Defendants’ Answer To Plaintiffs’ Third Amended Complaint - C-07-3455-WHA
9

Case3:07-cv-03455-WHA Document81 Filed05/30/08 Page11 of 12

1

FIFTH AFFIRMATIVE DEFENSE

2

The Third Amended Complaint is so general as to be insufficient to give Defendants fair

3 notice of the bases upon which Plaintiffs bring their claims.

4

SIXTH AFFIRMATIVE DEFENSE

5

This Court lacks jurisdiction over Plaintiffs' Second Cause of Action under the

6 Administrative Procedure Act.

7

SEVENTH AFFIRMATIVE DEFENSE

8

This Court lacks jurisdiction over Plaintiffs' Third Cause of Action under the Writ of

9 Mandamus.

10

EIGHTH AFFIRMATIVE DEFENSE

11

Relief should be denied to Plaintiffs as an exercise of judicial discretion to withhold relief.

12 The Court should not, even if empowered to do so, engage in the business of reordering agency

13 priorities, or jeopardize national security or the public safety by ordering Defendants to provide

14 documentation to Plaintiffs and alleged class members before the satisfactory completion of all

15 requisite background and security checks.

16

* * * * *

17

WHEREFORE Defendants ask that this action be dismissed with prejudice, that judgment

18 be entered for Defendants, that the request of an award of costs and expenses of the suit be denied

19 to Plaintiffs, and that the Court grant such other and further relief to Defendants as it deems

20 proper.

21

Respectfully submitted,

22

JOSEPH P. RUSSONIELLO

GREGORY G. KATSAS

23 United States Attorney

United States Department of Justice

JOANN M. SWANSON

Acting Assistant Attorney General, Civil Division

24 Assistant United States Attorney

ELIZABETH J. STEVENS

Chief, Civil Division

Assistant Director, District Court Section

25 EDWARD A. OLSEN

Office of Immigration Litigation

Assistant United States Attorney

26

Dated: May 30, 2008

By: /s/ Jeffrey S. Robins

27

JEFFREY S. ROBINS

Trial Attorney, District Court Section

28

Office of Immigration Litigation

Defendants’ Answer To Plaintiffs’ Third Amended Complaint - C-07-3455-WHA
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Case3:07-cv-03455-WHA Document81 Filed05/30/08 Page12 of 12

1

CERTIFICATE OF SERVICE

2 Case No. C-07-3455-WHA

3

I hereby certify that on this 30th day of May 2008, one copy of the foregoing

4 DEFENDANTS’ ANSWER TO PLAINTIFFS’ THIRD AMENDED COMPLAINT was served

5 on counsel for Plaintiffs via the district court ECF system which will send notification of such

6 filing to the following ECF filers:

7 Julia Harumi Mass
8 jmass@aclu.org Alan L. Schlosser
9 aschlosser@aclu.org Cecillia D. Wang
10 cwang@aclu.org ACLU Foundation of Northern California
11 Lucas Guttentag lguttentag@aclu.org
12 ACLU Immigrants’ Rights Project Christopher Joren Lyons
13 joren@asianlawcaucus.org Asian Law Caucus
14 In addition, I hereby certify that on this 30th day of May 2008, true and correct copies of
15 DEFENDANTS’ ANSWER TO PLAINTIFFS’ THIRD AMENDED COMPLAINT were
16 served by Federal Express next-day delivery on the following non-ECF filers:
17

18 Sin Yen Ling Asian Law Caucus
19 939 Market Street, Suite 201 San Francisco, CA 94103
20
21
22
23
24

Todd Gallinger Council on American-Islamic Relations (CAIR) 3000 Scott Boulevard, Suite 212 Santa Clara, CA 95054
/S/ JEFFREY S. ROBINS Trial Attorney Office of Immigration Litigation Civil Division U.S. Department of Justice Post Office Box 878, Ben Franklin Station Washington, D.C. 20044

25

26

27

28

Defendants’ Answer To Plaintiffs’ Third Amended Complaint - C-07-3455-WHA

 
 Ahmadi v. Chertoff, Not Reported in F.Supp.2d (2007)

2007 WL 3022573 Only the Westlaw citation is currently available.
United States District Court, N.D. California.
Alia AHMADI; Miao Ling Huang; Yan Wang, Fu Zhong, Plaintiffs, v.
Michael CHERTOFF, U.S. Secretary of Homeland Security; Robert S. Mueller III, Director of the Federal Bureau of Investigations; Alberto
Gonzalez, Attorney General of the United States; Emilio T. Gonzalez, Director, U.S. Department of
Homeland Security, Bureau of Citizenship and Immigration Services; David Still, District
Director, U.S. Department of Homeland Security, Bureau of Citizenship and Immigration Services,
San Francisco District, Defendants.
No. C 07-03455 WHA. | Oct. 15, 2007.
Attorneys and Law Firms
Alan Lawrence Schlosser, Cecillia Derphine Wang, Julia Harumi Mass, Esq., Lucas Guttentag, American Civil Liberties Union of Northern California, Inc., Christopher Joren Lyons, Asian Law Caucus, San Francisco, CA, Todd Eric Gallinger, Council on American-Islamic Relations, Santa Clara, CA, for Plaintiffs.
Elizabeth J. Stevens, Jeffrey S. Robins, U.S. Department of Justice, Civil Division Office of Immigration Litigation, Washington, DC, for Defendants.
Opinion
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
WILLIAM ALSUP, United States District Judge.
INTRODUCTION
*1 In this putative class action concerning naturalization petitions, federal defendants move to dismiss the first amended complaint for lack of jurisdiction and failure to state a claim. Plaintiffs have demonstrated that this Court has subject-matter jurisdiction over plaintiffs’ applications under 8 U.S.C. 1447(b). Since no administrative record has been presented with regard to plaintiffs’ applications, remand back to United States

Citizenship and Immigration Services, with or without instructions, is not appropriate at this time. Plaintiffs have a statutory remedy under Section 1447(b), so plaintiffs may not state a claim for the same remedies under the Administrative Procedure Act. Plaintiffs have failed to plead a liberty interest on which to base their due process claims. Accordingly, defendants’ motion to dismiss is GRANTED IN PART AND DENIED IN PART.
STATEMENT
Taking as true, as must be done, all well-pled allegations of fact, plaintiffs Alia Ahmadi, Vladimir Mikulicic, Igor Ovchinnokov, Biljana Petrovic, Sergei Sapozhnikov, Eiman Taky, and Yan Wang are long-time, lawful residents of the United States. Each is in the process of applying for naturalization, and claims to meet all statutory requirements. Each filed their application between 2003 and 2005. None of their applications, however, has been adjudicated. Allegedly, this is because they are among tens of thousands of applicants suffering from systemic delays in the naturalization process caused by the policies, practices, and procedures instituted by defendants Michael Chertoff, Robert S. Mueller III, Alberto Gonzales, Emilio T. Gonzalez, and David Still.
Plaintiffs allege that these delays in processing naturalization applications are a result of a requirement to go through an FBI “name check” (Compl.¶ 8). The name check runs an applicant’s name against an FBI database containing all the names of persons who are or were the subjects of FBI investigations (id. at ¶ 36). In 2002, the FBI expanded the scope of the name check to include names that were only mentioned in the FBI files (id. at ¶ 37). Plaintiffs allege that name checks implemented in this manner are not calculated to reveal criminal activity or national security risks. Applicants’ names register a hit if they were merely a witness or victim of a crime, if they had assisted the FBI with an investigation, or if they had undergone an employment-related security clearance in the past (id. at ¶ 38). The name checks also turn up a high number of false positives because they use alternate permutations of applicants’ names (id. at ¶ 39). CIS will allegedly not process an application for naturalization unless the FBI name check is completed (id. at ¶ 40). This policy at CIS was allegedly implemented in April 2006.
The gravamen of plaintiffs’ complaint is that defendants have policies and practices that unreasonably delay naturalization applications. Specifically, the Secretary of Homeland Security, the national director of CIS, and the district director of CIS allegedly have a policy of failing to adjudicate naturalization applications within 120 days of the naturalization examination and a policy of
1

Ahmadi v. Chertoff, Not Reported in F.Supp.2d (2007)

unlawfully withholding approval or unreasonably delaying applications (id. at ¶¶ 77-78). Plaintiffs allege that defendants Mueller and Alberto Gonzales1 have a policy of unlawfully withholding and unreasonably delaying the completion of FBI name checks while knowing that CIS requires them to be completed before adjudicating the applications (id. at ¶ 79). In short, plaintiffs allege that they had their naturalization interviews at CIS, and that CIS is required to give them a decision within 120 days of the completion of the interview. Because of the name-check requirement, plaintiffs’ applications have been held up. For some, four years have elapsed without a decision. Plaintiffs are allegedly prejudiced because of the uncertainty associated with the process and their inability to participate fully as United States citizens.

1

Defendant Alberto Gonzales resigned as Attorney

General effective September 17, 2007. In this action, he

is sued in his official capacity as head of the United

States Department of Justice. Until a new Attorney

General is confirmed, the acting Attorney General will

be deemed to be a defendant.

*2 This action was filed on July 2, 2007. Plaintiffs filed a first amended complaint on August 10, 2007. Plaintiffs purport to represent the class of all people who applied for naturalization, had an interview with CIS, and more than 120 days have passed since the interview without a decision on their applications.2 They allege claims for: (1) the right to de novo judicial determination of applications for naturalization pursuant to 8 U.S.C. 1447(b); (2) unreasonable delay in violation of the Administrative Procedure Act; (3) failure to follow notice and comment procedures in violation of the Administrative Procedure Act; and (4) violations of the Fifth Amendment’s due process clause. Plaintiffs ask for injunctive relief, among other things. Also in August, parties stipulated to dismiss the claims of Miao Ling Huang and Fu Zhong because they had been naturalized as citizens. This motion was filed on August 31, 2007, and plaintiffs filed their motion to certify a class on September 5, 2007. The motion to certify a class was continued until after the resolution of this motion. Parties filed an additional stipulation on October 12, 2007, to dismiss claims by Vladimir Mikulicic, Biljana Petrovic, Eiman Taky, and Yan Wang because their FBI name checks were completed.

2

To be clear, the ACLU made clear at the hearing that

this action is not brought on behalf of applicants still

waiting for an interview/examination.

ANALYSIS
Defendants first argue that this Court does not yet have jurisdiction over plaintiffs’ claims. They ask that either this action be dismissed under Rule 12(b)(1), or remanded to CIS without instructions. In the alternative they move to dismiss plaintiffs’ claims under the Administrative Procedure Act and due process claims under Rule 12(b)(6) for failure to state a claim.
1. JURISDICTION UNDER 8 U.S.C. 1447(b). To be naturalized as a United States citizen, an applicant must be a lawful permanent resident for at least five years, meet certain residence and continual physical presence requirements, be a person of good moral character, and must demonstrate an understanding of the English language, United States history, and principles of government. 8 U.S.C. 1427(a)-(c). While the naturalization application is pending:
an employee of the Service [CIS], or of the United States designated by the Attorney General, shall conduct a personal investigation of the person applying for naturalization in the vicinity or vicinities in which such person has maintained his actual place of abode and in the vicinity or vicinities in which such person has been employed or has engaged in business or work for at least five years immediately preceding the filing of his application for naturalization.
8 U.S.C. 1446(a). Regulations promulgated thereunder explain that “[t]he investigation shall consist, at a minimum, of a review of all pertinent records, police department checks, and a neighborhood investigation in the vicinities where the applicant has resided and has been employed, or engaged in business for at least the five years immediately preceding the filing of the application.” 8 C.F.R. 335.1. Applicants must also appear for an examination regarding the factors related to naturalization. 8 C.F.R. 335.2(a). Before the examination takes place, a criminal background check for the applicant must be completed. The background check entails at least receiving confirmation from the Federal Bureau of Investigations that the applicant does not have a criminal record, does have a criminal record, or that two properly-prepared fingerprint cards have been returned unclassifiable. 8 C.F.R. 335.2(b).
*3 Primary authority over naturalization is vested in the Secretary of the Department of Homeland Security, with
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Ahmadi v. Chertoff, Not Reported in F.Supp.2d (2007)
the administrative processes conducted by CIS. 8 U.S.C. 1421(a), 1446(a)-(c). An applicant may seek review of a naturalization petition in a federal district court under certain circumstances. For instance:
[i]f there is a failure to make a determination under Section 1446 of this title before the end of the 120-day period after the date on which the examination is conducted under such section, the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter. Such court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instruction, to the Service to determine the matter.
8 U.S.C. 1447(b). Plaintiffs argue that this Court has subject-matter jurisdiction over their claims because more than 120 days have passed from their naturalization interviews. Defendants contend that because of changes in naturalization procedures, the 120-day clock does not begin to run until after an FBI name check is completed. In essence, the agencies argue that the term “examination” as used in Section 1447(b) encompasses the FBI name check. Because of that, according to defendants, this Court does not have jurisdiction over any of plaintiffs’ claims because even though the naturalization interview had already taken place, the “examination,” which is supposed to precede the interview, is not yet complete. So, this motion turns mainly on the statutory meaning of the word “examination.”
A. Definition of “Examination.” Defendants argue that Section 1447(b) does not define “examination,” while plaintiffs urge that examination means the naturalization interview itself. The Ninth Circuit has noted that Section 1447(b) “requires the INS to make a decision regarding a naturalization application within 120 days of the initial interview of the applicant.” United States v. Hovsepian, 359 F.3d 1144, 1161 (9th Cir.2004) (en banc). Defendants contend that this statement was merely dicta, and that the actual holding of the Hovsepian decision was only that the district court has exclusive jurisdiction, to the exclusion of agencies, over a naturalization petition under Section 1447(b). Although defendants are correct, this statement is still instructive. Moreover, the Fourth Circuit reached the same conclusion-that the 120-day period runs from the completion of the initial interview-when holding that the district court has exclusive jurisdiction over a

naturalization application after the applicant files a petition under Section 1447(b). Etape v. Chertoff, 497 F.3d 379, 386-87 (4th Cir. Aug.2, 2007).
On very similar facts to this action, the Fifth Circuit held that the 120-day period begins to run when the initial interview is conducted. Walji v. Gonzales, --- F.3d ----, 2007 WL 2685028, *2 (5th Cir. Sept.14, 2007). In Walji, an applicant’s petition for naturalization was held up for more than two years after his initial interview had been conducted because his FBI name check was still pending. He petitioned a district court under Section 1447(b), and the government argued that the district court did not have jurisdiction because the FBI name check was not complete. The decision noted that the plain language of the statute supported the interpretation that the “examination” was a single event, and that the 120-day period begins to run after “the date on which the examination is conducted.” Id. at *3. Additionally, the regulations referred to the FBI background check and the examination as two separate events. For instance, if deficiencies in an application are discovered, CIS personnel can schedule an additional interview, provided it falls within the 120-day period. See 8 C.F.R. 335.3(b). Finally, the Fifth Circuit noted that the legislative history supported its interpretation of “examination” as a discrete event-the initial interview. It stated “we believe the definition of ‘examination’ in § 1447(b) urged by the Government, which would permit virtually unbounded time to respond to naturalization applications, is contrary to the intended purpose of Congress in passing the Immigration and Nationality Act. A central purpose of the statute was to reduce the waiting time for naturalization applicants.” Walji at *5.
*4 Some district courts have reached the opposite conclusion. A pair of decisions from the Eastern District of Virginia held that “examination” encompasses all procedures that the agency deems necessary to the investigation, including the FBI name check. Martinez v. Gonzalez, 463 F.Supp.2d 569 (E.D.Va.2006) (Friedman, J.); Danilov v. Aguirre, 370 F.Supp.2d 441, 444-45 (E.D.Va.2006) (Ellis, J.). Given that the Fourth Circuit recently noted in Etape that the 120-day period runs from the date of the initial interview, the status of those decisions is doubtful. 497 F.3d at 386-87. The Etape decision did not address the directly address the question of when jurisdiction attaches under Section 1447(b), but it considerably weakens the persuasive force of those two decisions. Another decision similarly held that “examination” includes the FBI name check. Damra v. Chertoff, 2006 WL 1786246 (N.D.Ohio 2006) (Boyko, J.). None of these decisions are from this circuit. Moreover, none of these decisions come to terms with the concern identified in by the Fifth Circuit in Walji-that the FBI name-check process could go on almost indefinitely. Accordingly, this order finds the logic of Walji to be persuasive. This order holds, as per the prevailing view of
3

Ahmadi v. Chertoff, Not Reported in F.Supp.2d (2007)
appellate authority, that the term “examination” does not necessarily encompass an FBI name check, and the 120-day clock begins to run as of the close of the initial interview.
Defendants also contend that even if the examination does not include the name check, they have merely conducted the process in reverse. The agencies failed to complete the background check until after the initial interview took place. For expedience, they conducted the interviews before the investigation was completed. The regulations clearly contemplate that a background check should be conducted before the initial interview, at least to the extent that the FBI must verify that the applicant does not have a criminal record. 8 C.F.R. 335.2(b). The agencies contend the FBI name check is actually part of the background check that must be conducted before the interview happens. Plaintiffs vociferously disagree, and argue that the FBI need only run the applicant’s fingerprints and verify whether the applicant has a criminal record, not conduct the expansive search of FBI files performed for a name check. This order need not decide the scope of the examination, however, because Section 1447(b) indicates that the 120-day clock runs from the close of the initial interview.
The agencies next argue that Congress mandated that a “full criminal background check” be completed before adjudicating a naturalization application. The language on which they rely, from an appropriations bill, states that:
during fiscal year 1998 and each fiscal year thereafter, none of the funds appropriated or otherwise made available to the Immigration and Naturalization Service shall be used to complete adjudication of an application for naturalization unless the Immigration and Naturalization Services has received confirmation from the Federal Bureau of Investigation that a full criminal background check has been completed ...
*5 Pub.L. No. 105-119, Title 1, 111 Stat. 2448 (Nov. 26, 1997). This law does require defendants to conduct a criminal background check before adjudicating a naturalization application. It does not, however, necessarily mandate the FBI name check currently employed by the agencies. Moreover, it does not excuse the delays in the system or have any effect at all on whether or not this Court has jurisdiction under Section 1447(b).
Next, defendants contend that the examination could not have been completed until the FBI name check was

finished, so the 120-day period has not begun to run. Regardless of whether it is a discrete event or not, it is argued, no examination could have taken place or been completed before the background check is completed. According to defendants, there was no triggering event to start the 120-day clock until the agency decides that whatever necessary examination procedures have been completed. This tortured argument begs the question of why CIS would even bother call in an applicant for an interview if doing must be deemed a fiction. As a practical matter, this interpretation reads the 120-day period out of existence. Indeed, if the agencies could conduct a languid investigation with no time limit, it would be unclear if the district court would ever have jurisdiction under Section 1447(b). In practice, applicants could be left waiting indefinitely for a decision on their applications with no way of getting review. Applicants could be stuck in a bureaucratic loop for an undetermined amount of time. Legitimate applicants would be denied naturalization. Conversely, those whose applications should be denied would be allowed to stay in the United States. The will of Congress would be thwarted.

The agencies also argue that the statute contemplates the district court conducting a full review on the record. This, according to defendants, indicates that the name check should be complete before the district court can adjudicate any applications. Remedies other than adjudication, however, are available under Section 1447(b). The district court can approve the application, deny it, or remand it back to CIS with appropriate instructions. The statute says so expressly. The latter option may be apt where the record is incomplete because defendants have not completed the background check.

Finally, in the reply brief, the agencies contend that they are fulfilling their administrative function of filling interpretive gaps in the meaning of statutes using their expertise. As such, they say, the district court should defer to their definition of “examination.” See Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 543, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). Since the statute does not define what a background check entails, the agencies filled in the gaps by deciding that the FBI name check is necessary to complete a background check. The agencies raise valid points, arguing that thorough background checks are necessary for the security and safety of the United States, at least in the facts and circumstances of many cases. Still, this does not negate this Court’s express jurisdiction under Section 1447(b). Accordingly, this Court has jurisdiction over plaintiffs’ claims under 8 U.S.C. 1447(b). Defendants’ motion to dismiss for lack of jurisdiction is DENIED .3

3

There is no statutory command to hold the interview at

any given time and the agency can wait on holding the

interview until the FBI name check is done. Indeed, the

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Ahmadi v. Chertoff, Not Reported in F.Supp.2d (2007)
Walji decision contemplated the agencies doing just that. Walji, 2007 WL 2685028 at *5-*6. Or, the agency can hold the interview, and if discrepancies arise, CIS may schedule a reexamination within the 120-day period after the initial interview. If the applicant requests a postponement of the reexamination such that it is more than 90 days after the initial interview, the applicant must expressly waive the requirement that CIS should render a decision within 120 days of the initial interview. Instead, the 120-day clock begins to run after the second interview. 8 C.F.R. 335. In the cases before the Court, this did not happen. Plaintiffs’ interviews were deemed completed.
B. Remand. *6 Defendants ask, in the alternative, to have these applications remanded to CIS, preferably without instructions. This issue is not ripe at this time. Defendants raise the specter that if the Court retains jurisdiction over these claims, CIS cannot adjudicate them even if the FBI name check is completed. This problem is easily fixed. In fact, parties have stipulated to dismiss some plaintiffs’ claims so their applications can be adjudicated. If the name check is completed, then remand to CIS to adjudicate the application may be appropriate. Remanding back to CIS with no instruction or deadline, however, runs the risk that the application could still be pending years into the future. Moreover, no record as to any of plaintiffs’ applications has been presented on this motion to dismiss. Accordingly, defendants’ request to remand these applications back to CIS is DENIED.
C. Joinder. Defendants also contend that individual plaintiffs’ claims are not properly joined in this action. They ask that since plaintiffs ask for individual hearings on their petitions, individual plaintiffs’ claims should be severed under Rule 21. Given the early stage of this action, this request to sever is premature. The question of holding separate hearings is more appropriately addressed when it becomes clearer that a hearing is actually necessary. Given the overlap in the threshold issues, however, joinder was appropriate.
2. UNREASONABLE DELAY. Under the APA, a court can review agency action or inaction if a person has suffered legal wrong or has been adversely affected. 5 U .S.C. 702. The APA instructs that courts “shall ... compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. 706(1). Plaintiffs contend that the agencies have unlawfully withheld and unreasonably delayed adjudication of their naturalization

applications after the interview has been closed. They argue that their claim itself is targeted toward systemic delays in the system, not in the delay in any particular application. This is the proposed class relief part of this ACLU case.
“When Congress enacted the APA to provide a general authorization for review of agency action in the district courts, it did not intend that general grant of jurisdiction to duplicate the previously established special statutory procedures relating to specific agencies.” Bowen v. Massachusetts, 487 U.S. 879, 903, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988). Generally, it is improper to rely on general grants of jurisdiction in the face of a specific statute that confers jurisdiction. United States v. Fausto, 484 U.S. 439, 448-49, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988). Defendants argue that this claim fails as a matter of law because plaintiffs already have a remedy for administrative delays under 8 U.S.C. 1447(b). District courts already have jurisdiction 120 days after the examination is completed. The district court can adjudicate the petition itself or remand to CIS with instructions. Again, this action is drawn so as to address only those applications for whom the interview has been closed and the 120-day clock has run. It does not, the ACLU says, include pre-interview applicants.
*7 Plaintiffs contend that this action is actually targeted at systemic delays in processing FBI name checks, so any remedy obtained on any individual application in the district courts is inadequate. Adjudicating delayed applications on a case-by-case basis does not address the real problem identified by plaintiffs. Plaintiffs’ argument assumes that a class will be certified in this action. This is far from clear, given that each application has its own unique fact issues, some with criminal records, some without. For now, only the claims of our individual plaintiffs are presented at this time. At least for them, this Court can provide a remedy-it could decide to adjudicate the application itself, or remand to CIS with instructions to adjudicate the application in a timely fashion. Individual plaintiffs end up with the same relief under Section 1447(b) that they would receive under the APA even if a class was certified. But even if the facts of plaintiffs’ applications were sufficiently similar to certify a class, each plaintiff would end up in the same place under the statute as with an APA claim.
In support of their argument, plaintiffs cite to McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991). In that decision, the plaintiffs sought review under the APA of the administration of grants of special agricultural worker status by the INS. The decision held that a statute that precluded direct review of the denial of an application for special agricultural worker status did not preclude administrative review under the APA. Id. at 497-98. Because of that, certifying a class of those workers whose applications
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Ahmadi v. Chertoff, Not Reported in F.Supp.2d (2007)
were unreasonably denied was held proper. The instant case is the opposite. In the instant case, there is no such limit on direct review. As Section 1447(b) makes clear, a district court has jurisdiction to review and adjudicate the petitions 120 days after the examination, so unlike McNary, plaintiffs have a remedy. Plaintiffs fault the government for arguing that they have no remedy under either the statute or the APA. If plaintiffs have no APA remedy, and the agencies can decide on their own when the examination is complete, plaintiffs would never have a remedy under the government’s logic. This order, however, has already rejected the government’s crabbed reading of the statute and has determined that Section 1447(b) does give jurisdiction over plaintiffs’ applications, so plaintiffs do have a remedy for delays in the naturalization process.
In sum, because plaintiffs already have a remedy under statute, they cannot assert one under the APA. Accordingly, plaintiffs cannot state a claim for relief under the APA for agency action unlawfully withheld or unreasonably delayed. Defendants’ motion to dismiss the APA claim is GRANTED. This order need not address defendants’ other arguments.
3. FAILURE TO FOLLOW NOTICE-AND-COMMENT PROCEDURES. Under the APA, a reviewing court must hold unlawful and set aside an agency action found to be “without observance of procedure required by law.” 5 U.S.C. 706. Under 5 U.S.C. 553(a), an agency is required to give notice in the Federal Register of a proposed change in rules and give an opportunity for public comment before a rule is adopted. This requirement does not apply to general statements of policy, interpretive rules, or rules of agency organization, procedure or practice. 5 U.S.C. 553(b)(3)(B).
A. Relief Under the APA. *8 Plaintiffs’ third claim is for failure to follow notice-and-comment procedures in allegedly adding the requirement of a completed FBI name check to the naturalization process. Plaintiffs allege that in November 2002, CIS expanded the FBI name-check requirement to encompass both the FBI’s main files and reference files without giving the public an opportunity to comment. According to plaintiffs, the addition of the FBI name check was tantamount to making a new rule because it added a requirement for obtaining citizenship. Accordingly, they say there should have been an opportunity for notice and comment under the APA. Defendants contend that the requirement of running a background check has long been present, and that extending the background check to encompass the FBI’s

main files and reference files was merely an interpretation of an existing rule. No notice-and-comment procedures were needed, according to the agencies.
The agencies first point out that plaintiffs did not ask for relief based on this claim in their complaint. Plaintiff’s prayer for relief focuses on getting named plaintiffs’ applications adjudicated in a timely fashion and requiring the agencies to adopt policies to ensure that applications get processed. They also ask for a declaratory judgment holding unlawful the failure to complete FBI name checks and the failure to timely adjudicate applications. At no point do plaintiffs ask that CIS or other agencies conduct notice-and-comment proceedings on the expanded scope of the FBI name check. Even if this procedural failing were corrected, notice-and-comment proceedings are unlikely to remedy the harms plaintiffs allege that they have suffered. Irrespective of the scope of the name check, plaintiffs want to have their applications adjudicated in a timely fashion. Moreover, plaintiffs aruge that the name check takes too long. Even if the agency conducted notice-and-comment proceedings, that does not guarantee plaintiffs’ desired result. Plaintiffs do have a remedy to streamline the adjudication of their applications. They can (and did) petition the district court under 8 U.S.C. 1447(b).
B. Substantive Versus Interpretive Rules. “Substantive rules are those which effect a change in existing law or policy.” Powderly v. Schweiker, 704 F.2d 1092, 1098 (9th Cir.1983). “These are rules which create law, and are usually implementary to an existing law, incrementally imposing general, extra-statutory obligations pursuant to authority properly delegated by the legislature.” Alcaraz v. Block, 746 F.2d 593, 613 (9th Cir.1984). Generally, agencies issue interpretive rules to clarify or explain existing laws or regulations to advise the public of the agency’s construction of those laws and regulations. Gunderson v. Hood, 268 F.3d 1149, 1154 (9th Cir.2001).
Defendants contend that the change in the rules only modified their construction of the term “full criminal background check,” as used in 8 C.F.R. 355. They also argue that they expanded the scope of the search in response to concerns about terrorist attacks. The addition of the FBI name check is merely one in a long line of adjustments to the investigation process, according to the agencies. In support, they cite to a number of regulations promulgated regarding requirements for naturalization petitions. As plaintiffs point out, however, for a number of those rules, the agencies followed notice-and-comment procedures. Here, however, the agency was merely interpreting the scope of the FBI name check. It did not actually add anything to the process except to require a more expansive search.
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Ahmadi v. Chertoff, Not Reported in F.Supp.2d (2007)
*9 The mere fact that an interpretive rule has a substantial impact does not, without more, mean that it is subject to notice and comment. Alcaraz, 746 F.2d at 614 (9th Cir.1984). Plaintiffs urge that the expansion of the name check created a new requirement for naturalization and causes significant delays in the naturalization process. In part, they are correct-the expanded name check has created significant delays. The expanded name check did not, however, add a new requirement in the naturalization process, as plaintiffs contend. The agencies have long been required to conduct an investigation into an applicants’ background before adjudicating an application. The expanded name check merely enlarged the scope of that investigation. Accordingly, this order holds that notice-and-comment procedures under the APA were not required to merely enlarge the scope of the FBI criminal background check. Defendants’ motion to dismiss is GRANTED as to this claim.
4. DUE PROCESS CLAIMS. Plaintiffs’ final claim alleges that the FBI name check requirement violates their constitutional rights under the due process clause of the Fifth Amendment. Specifically, they allege that defendants have a practice that violates 8 U.S.C. 1446(d) and 8 C.F.R. 335 by adding requirements to the citizenship process. They also allege that defendants’ failure to set deadlines and arrange for the FBI name checks to be completed in a timely fashion violates their due process rights.
A plaintiff asserting a due process claim must first show that he has a protected interest in liberty or property. See Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Plaintiffs identify two purported concrete protected interests: (1) the right to their naturalization based upon their satisfaction of all statutory requirements; and (2) a timely adjudication of their naturalization applications within 120 days of their naturalization examinations.
“No alien has the slightest right to naturalization unless all statutory requirements have been complied with.” United States v. Ginsberg, 243 U.S. 472, 475, 37 S.Ct. 422, 61 L.Ed. 853 (1917). There is no protected interest in mere process by itself. Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 280 n. 2, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998). Plaintiffs admit that they have no per se right to naturalization. They do, however, assert that if they have first satisfied all of the statutory requirements for naturalization, then they have a right to be naturalized. Moreover, mandatory language requires CIS to make some determination on the application, stating that “[t]he employee designated to conduct any such examination shall make a determination as to whether the application should be granted or denied, with reasons therefor.” 8

U.S.C. 1446(d). The implementing regulation of this section states that “[t]he Service officer shall grant the application if the applicant has complied with all requirements for naturalization under this chapter.” 8 C.F.R. 335.3(a).
*10 Plaintiffs allege that they have, in fact, completed all of the necessary statutory requirements to be naturalized, so they have a right to have their applications granted. Defendants claim that there may be some question as to whether that allegation is true. Specifically, they argue that the FBI name check has not been completed for some plaintiffs, and that it is unclear whether or not they have actually fulfilled all of the statutory requirements. Even assuming that plaintiffs have a right to be naturalized if they fulfill all of the requirements, it is unclear whether or not they can plead that they have done so. As indicated in the briefing done by both sides, there are serious questions as to what those statutory requirements entail.
Plaintiffs here do not allege that they met the statutory criteria and their applications were denied. They allege that they have met the statutory criteria, and their applications have not been granted yet. As described more fully below, even if an applicant does meet all of the statutory requirements for naturalization, nothing guarantees that their application must be granted by any date certain. In addition, plaintiffs have a remedy under Section 1447(b) for their delayed applications. Accordingly, there is no protected liberty interest in being naturalized within any specific time.
As to plaintiffs’ second theory, they have attempted to assert a right that is simply not found in any statute or rule. There is no right to have an application adjudicated within 120 days of completion of the examination. To the extent that plaintiffs point to 8 U.S.C. 1447(b) as the source of that purported right, that statute only gives a district court jurisdiction over the petition after 120 days. Once it has jurisdiction over the petition, the district court can grant, deny, or remand the application back to CIS. Plaintiffs overestimate the powers and efficiency of the district court if they assert that this statute gives them a right to have the application adjudicated within 120 days. Accordingly, this purported right to a timely adjudication cannot form the basis of a due-process claim. Accordingly, defendants’ motion to dismiss is GRANTED as to this claim.
5. INJUNCTIVE RELIEF. Finally, defendants move to strike plaintiffs’ claims for injunctive relief. Defendants’ argument here rests on the idea that plaintiffs are not entitled to relief here. As this order has found above, however, plaintiffs are entitled to relief, at least under 8 U.S.C. 1447(b). Under that section, this Court has the power to remand individual plaintiffs’
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Ahmadi v. Chertoff, Not Reported in F.Supp.2d (2007)
petitions back to CIS with instructions, or to adjudicate the applications itself. Striking plaintiffs’ claims for injunction relief is simply not appropriate at this stage. Accordingly, defendants’ motion to strike is DENIED.
CONCLUSION For all of the above-stated reasons, defendants’ motion to dismiss for lack of jurisdiction is DENIED. Defendants’

request to remand plaintiffs’ applications back to CIS is DENIED . Defendants’ motion to dismiss for failure to state a claim is GRANTED as to plaintiffs’ claims under the APA and for violations of due process. Defendants’ motion to strike plaintiffs’ claims for injunctive relief is DENIED.
*11 IT IS SO ORDERED.
	  

8

 
 Case: 3:07-cv-03455-WHA As of: 08/07/2012 09:44 AM PDT 1 of 17
ADRMOP,CLOSED,E−Filing,REFSET−BZ
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:07−cv−03455−WHA

Ahmadi et al v. Chertoff et al Assigned to: Hon. William Alsup Referred to: Magistrate Judge Bernard Zimmerman (Settlement) Case in other court: Ninth Circuit, 08−16443 Cause: 8:1446 Petition for Naturalization Hearing
Plaintiff

Date Filed: 07/02/2007 Date Terminated: 08/04/2008 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

Alia Ahmadi

represented by Alan Lawrence Schlosser ACLU Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 415−621−2493 Fax: 415−255−8437 Email: aschlosser@aclunc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cecillia Derphine Wang American Civil Liberties Union Foundation Immigrants Rights Project 39 Drumm Street San Francisco, CA 94111 415−343−0775 Fax: 415−395−0950 Email: cwang@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Joren Lyons Asian Law Caucus 939 Market Street Suite 201 San Francisco, CA 94103 415−896−1701 ext. 122 Fax: 415−896−1702 Email: joren@asianlawcaucus.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. American Civil Liberties Union of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 415−621−2493 Fax: 415−255−8437 Email: jmass@aclunc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lucas Guttentag American Civil Liberties Union Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111

Case: 3:07-cv-03455-WHA As of: 08/07/2012 09:44 AM PDT 2 of 17

(415) 343−0773 Fax: (415) 395−0950 Email: lguttentag@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amitai Schwartz Law Offices of Amitai Schwartz Watergate Towers, Suite 1286 2000 Powell Street Emeryville, CA 94608 510/597−1775 Fax: 510−597−0957 Email: Amitai@SchwartzLaw.com ATTORNEY TO BE NOTICED

Moira Isabel Eileen Duvernay Law Offices of Amitai Schwartz Watergate Towers 2000 Powell Street, Ste. 1286 Emeryville, CA 94608 (510) 597−1775 Fax: (510) 597−0957 Email: moira@schwartzlaw.com ATTORNEY TO BE NOTICED

Todd Eric Gallinger Council on American−Islamic Relations 3000 Scott Blvd., Suite 212 Santa Clara, CA 95054 408−986−9874 Fax: 408−986−9875 ATTORNEY TO BE NOTICED

Plaintiff
Miao Ling Huang TERMINATED: 10/02/2007

represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Cecillia Derphine Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Joren Lyons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Case: 3:07-cv-03455-WHA As of: 08/07/2012 09:44 AM PDT 3 of 17

Plaintiff Yan Wang TERMINATED: 11/15/2007
Plaintiff Fu Zhong TERMINATED: 10/02/2007

Todd Eric Gallinger (See above for address) ATTORNEY TO BE NOTICED
represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amitai Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cecillia Derphine Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Joren Lyons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julia Harumi Mass , Esq. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lucas Guttentag (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd Eric Gallinger (See above for address) ATTORNEY TO BE NOTICED
represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amitai Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cecillia Derphine Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Joren Lyons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julia Harumi Mass , Esq. (See above for address) LEAD ATTORNEY

Case: 3:07-cv-03455-WHA As of: 08/07/2012 09:44 AM PDT 4 of 17

ATTORNEY TO BE NOTICED

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

Todd Eric Gallinger (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Angel Gentchev

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

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

Amitai Schwartz (See above for address) ATTORNEY TO BE NOTICED

Moira Isabel Eileen Duvernay (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jiwei Huang

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

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

Amitai Schwartz (See above for address) ATTORNEY TO BE NOTICED

Moira Isabel Eileen Duvernay (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Igor Ovchinnikov

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

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

Amitai Schwartz (See above for address) ATTORNEY TO BE NOTICED

Case: 3:07-cv-03455-WHA As of: 08/07/2012 09:44 AM PDT 5 of 17

Plaintiff Sergei Sapozhnikov
Plaintiff Helga Scovajsa
Plaintiff Amir Sayed

Moira Isabel Eileen Duvernay (See above for address) ATTORNEY TO BE NOTICED
represented by Cecillia Derphine Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lucas Guttentag (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amitai Schwartz (See above for address) ATTORNEY TO BE NOTICED
Moira Isabel Eileen Duvernay (See above for address) ATTORNEY TO BE NOTICED
represented by Cecillia Derphine Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lucas Guttentag (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amitai Schwartz (See above for address) ATTORNEY TO BE NOTICED
Moira Isabel Eileen Duvernay (See above for address) ATTORNEY TO BE NOTICED
represented by Cecillia Derphine Wang American Civil Liberties Union Foundation 39 Drumm Street San Francisco, CA 94111 415−343−0775 Fax: 415−395−0950 Email: cwang@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amitai Schwartz (See above for address) ATTORNEY TO BE NOTICED
Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Case: 3:07-cv-03455-WHA As of: 08/07/2012 09:44 AM PDT 6 of 17

Moira Isabel Eileen Duvernay (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Vandewalle−Callinan

represented by Amitai Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Michael Chertoff US Secretary of Homeland Security
Defendant Robert S. Mueller, III Director of the Federal Bureau of Investigation

represented by Edward A. Olsen United States Attorney's Office Northern District of California 450 Golden Gate Avenue Box 36055 San Francisco, CA 94102 415−436−6915 Fax: 415−436−6927 Email: edward.olsen@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth J. Stevens Office of Immigration Litigation United States Department of Justice P.O. Box 868, Ben Franklin Station 450 5th Street NW Washington, DC 20044 (202) 616−9752 Fax: (202) 305−7000 Email: Elizabeth.Stevens@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey S. Robins U.S. Department of Justice, Civil Division Office of Immigration Litigation P.O. Box 878, Ben Franklin Station Washington, DC 20044 202−616−1246 Fax: 202−233−0397 Email: jeffrey.robins@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Edward A. Olsen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth J. Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey S. Robins (See above for address) LEAD ATTORNEY

Case: 3:07-cv-03455-WHA As of: 08/07/2012 09:44 AM PDT 7 of 17

ATTORNEY TO BE NOTICED

Defendant
US Attorney General Alberto Gonzales TERMINATED: 11/15/2007

represented by Edward A. Olsen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth J. Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey S. Robins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Director Emilio T. Gonzalez US Department of Homeland Security, Bureau of Citizenship and Immigration Services

represented by Edward A. Olsen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth J. Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey S. Robins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
District Director David Still US Department of Homeland Secuirty, Bureau of Citizenship and Immigration Services, San Francisco District

represented by Edward A. Olsen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth J. Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey S. Robins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Michael Mukasey Attorney General of the United States

represented by Edward Olsen Assistant United States Attorney 450 Golden Gate Avenue, Box 36055 San Francisco, CA 94102 415 436−7124 Fax: 415 436−7169 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward A. Olsen (See above for address)

Case: 3:07-cv-03455-WHA As of: 08/07/2012 09:44 AM PDT 8 of 17
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth J. Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey S. Robins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/02/2007
07/02/2007 07/02/2007 07/02/2007 07/02/2007 07/02/2007 07/03/2007 07/03/2007 07/03/2007 07/03/2007 07/03/2007 07/03/2007

# Docket Text
1 CLASS ACTION COMPLAINT against Michael Chertoff, Robert S. Mueller, III, Alberto Gonzales, Emilio T. Gonzalez, David Still ( Filing fee $ 350, receipt number 34611007898.). Filed byYan Wang, Fu Zhong, Alia Ahmadi, Miao Ling Huang. (sis, COURT STAFF) (Filed on 7/2/2007) Additional attachment(s) added on 7/13/2007 (sis, COURT STAFF). (Entered: 07/03/2007)
Summons Issued as to Michael Chertoff, Robert S. Mueller, III, Alberto Gonzales, Emilio T. Gonzalez, David Still, U.S. Attorney and U.S. Attorney General (sis, COURT STAFF) (Filed on 7/2/2007) (Entered: 07/03/2007)
2 MOTION to Related Case. Case 07−503 SBA, filed by Yan Wang, Fu Zhong, Alia Ahmadi, Miao Ling Huang. (sis, COURT STAFF) (Filed on 7/2/2007) Additional attachment(s) added on 7/13/2007 (sis, COURT STAFF). (Entered: 07/03/2007)
3 ADR SCHEDULING ORDER: Case Management Statement due by 10/4/2007. Case Management Conference set for 10/11/2007 11:00 AM. (sis, COURT STAFF) (Filed on 7/2/2007) (Entered: 07/03/2007)
4 SUPPLEMENTAL ORDER TO ORDER SETTING INITIAL CASE MANAGEMENT CONFERENCE re 3 ADR Scheduling Order (Attachments: # 1 Standing Order)(sis, COURT STAFF) (Filed on 7/2/2007) (Entered: 07/03/2007)
CASE DESIGNATED for Electronic Filing. (sis, COURT STAFF) (Filed on 7/2/2007) (Entered: 07/03/2007)
5 SUMMONS Returned Executed by Yan Wang, Fu Zhong, Alia Ahmadi, Miao Ling Huang. Michael Chertoff served on 7/2/2007, answer due 8/31/2007. (Wang, Cecillia) (Filed on 7/3/2007) Additional attachment(s) added on 7/19/2007 (sis, COURT STAFF). (Entered: 07/03/2007)
6 SUMMONS Returned Executed by Yan Wang, Fu Zhong, Alia Ahmadi, Miao Ling Huang. Robert S. Mueller, III served on 7/2/2007, answer due 8/31/2007. (Wang, Cecillia) (Filed on 7/3/2007) Additional attachment(s) added on 7/19/2007 (sis, COURT STAFF). (Entered: 07/03/2007)
7 SUMMONS Returned Executed by Yan Wang, Fu Zhong, Alia Ahmadi, Miao Ling Huang. Alberto Gonzales served on 7/2/2007, answer due 8/31/2007. (Wang, Cecillia) (Filed on 7/3/2007) Additional attachment(s) added on 7/19/2007 (sis, COURT STAFF). (Entered: 07/03/2007)
8 SUMMONS Returned Executed by Yan Wang, Fu Zhong, Alia Ahmadi, Miao Ling Huang. Emilio T. Gonzalez served on 7/2/2007, answer due 8/31/2007. (Wang, Cecillia) (Filed on 7/3/2007) Additional attachment(s) added on 7/19/2007 (sis, COURT STAFF). (Entered: 07/03/2007)
9 SUMMONS Returned Executed by Yan Wang, Fu Zhong, Alia Ahmadi, Miao Ling Huang. David Still served on 7/2/2007, answer due 8/31/2007. (Wang, Cecillia) (Filed on 7/3/2007) Additional attachment(s) added on 7/19/2007 (sis, COURT STAFF). (Entered: 07/03/2007)
10 CERTIFICATE OF SERVICE by Yan Wang, Fu Zhong, Alia Ahmadi, Miao Ling Huang re Summons Issued as to USA, 4 SUPPLEMENTAL ORDER TO ORDER

Case: 3:07-cv-03455-WHA As of: 08/07/2012 09:44 AM PDT 9 of 17

07/12/2007 07/31/2007 07/31/2007 08/10/2007 08/10/2007 08/31/2007
08/31/2007
08/31/2007 09/05/2007
09/05/2007 09/05/2007 09/05/2007 09/05/2007 09/05/2007 09/10/2007 09/12/2007 09/12/2007

SETTING INITIAL CASE MANAGEMENT CONFERENCE, Case Referred to ECF, 3 ADR Scheduling Order, 1 Complaint, 2 MOTION to Related Case (Wang, Cecillia) (Filed on 7/3/2007) (Entered: 07/03/2007)
11 NOTICE by Yan Wang, Fu Zhong, Alia Ahmadi, Miao Ling Huang AMENDED NOTICE OF RELATED CASE (Wang, Cecillia) (Filed on 7/12/2007) (Entered: 07/12/2007)
12 NOTICE of Appearance by Elizabeth J. Stevens on behalf of all Defendants (Stevens, Elizabeth) (Filed on 7/31/2007) (Entered: 07/31/2007)
13 NOTICE of Appearance by Jeffrey S. Robins (Robins, Jeffrey) (Filed on 7/31/2007) (Entered: 07/31/2007)
14 AMENDED COMPLAINT against all defendants. Filed byAlia Ahmadi. (Wang, Cecillia) (Filed on 8/10/2007) (Entered: 08/10/2007)
15 STIPULATION of Dismissal of Claims of Plaintiffs Miao Ling Huang and Fu Zhong by Alia Ahmadi. (Wang, Cecillia) (Filed on 8/10/2007) (Entered: 08/10/2007)
16 MOTION to Dismiss filed by Michael Chertoff, Robert S. Mueller, III, Alberto Gonzales, Emilio T. Gonzalez, David Still. Motion Hearing set for 10/11/2007 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Attachments: # 1 Proposed Order)(Robins, Jeffrey) (Filed on 8/31/2007) (Entered: 08/31/2007)
17 Declaration of Jeffrey S. Robins in Support of 16 MOTION to Dismiss filed byMichael Chertoff, Robert S. Mueller, III, Alberto Gonzales, Emilio T. Gonzalez, David Still. (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2# 3 Exhibit Exhibit 3# 4 Exhibit Attachment A)(Related document(s) 16 ) (Robins, Jeffrey) (Filed on 8/31/2007) (Entered: 08/31/2007)
18 EXHIBITS re 17 Declaration in Support, Attachment A filed byMichael Chertoff, Robert S. Mueller, III, Alberto Gonzales, Emilio T. Gonzalez, David Still. (Related document(s) 17 ) (Robins, Jeffrey) (Filed on 8/31/2007) (Entered: 08/31/2007)
19 MOTION to Certify Class filed by Alia Ahmadi. Motion Hearing set for 10/11/2007 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Wang, Cecillia) (Filed on 9/5/2007) Modified on 1/18/2008 (sis, COURT STAFF). (Entered: 09/05/2007)
20 Declaration of Helen Sterling in Support of 19 MOTION to Certify Class filed byAlia Ahmadi. (Related document(s) 19 ) (Wang, Cecillia) (Filed on 9/5/2007) (Entered: 09/05/2007)
21 Declaration of Leona Kwon in Support of 19 MOTION to Certify Class filed byAlia Ahmadi. (Related document(s) 19 ) (Wang, Cecillia) (Filed on 9/5/2007) (Entered: 09/05/2007)
22 Declaration of Sin Yen Ling in Support of 19 MOTION to Certify Class filed byAlia Ahmadi. (Related document(s) 19 ) (Wang, Cecillia) (Filed on 9/5/2007) (Entered: 09/05/2007)
23 Declaration of Yumna Daimee in Support of 19 MOTION to Certify Class filed byAlia Ahmadi. (Related document(s) 19 ) (Wang, Cecillia) (Filed on 9/5/2007) (Entered: 09/05/2007)
24 Proposed Order re 19 MOTION to Certify Class by Alia Ahmadi. (Wang, Cecillia) (Filed on 9/5/2007) (Entered: 09/05/2007)
25 Ex Parte Application filed by Michael Chertoff, Robert S. Mueller, III, Alberto Gonzales, Emilio T. Gonzalez, David Still. (Robins, Jeffrey) (Filed on 9/10/2007) (Entered: 09/10/2007)
26 ORDER by Judge Alsup granting in part and denying in part 25 Ex Parte Application (whalc1, COURT STAFF) (Filed on 9/12/2007) (Entered: 09/12/2007)
27 MEMORANDUM in Support re 19 MOTION to Certify Class (Corrected Version) filed byAlia Ahmadi. (Attachments: # 1 Exhibit Exhibit A (CIS Table 23, cited in

Case: 3:07-cv-03455-WHA As of: 08/07/2012 09:44 AM PDT 10 of 17

09/12/2007
09/20/2007 09/20/2007 09/20/2007 09/27/2007
10/02/2007 10/04/2007 10/11/2007
10/11/2007 10/11/2007
10/11/2007 10/11/2007 10/12/2007
10/15/2007 10/16/2007 10/17/2007

note 1))(Related document(s) 19 ) (Wang, Cecillia) (Filed on 9/12/2007) (Entered: 09/12/2007)
Set/Reset Deadlines as to 19 MOTION to Certify Class. Responses due by 10/18/2007. Replies due by 10/25/2007. Motion Hearing set for 11/8/2007 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (sis, COURT STAFF) (Filed on 9/12/2007) (Entered: 09/13/2007)
28 ADR Certification (ADR L.R. 3−5b) of discussion of ADR options (Wang, Cecillia) (Filed on 9/20/2007) (Entered: 09/20/2007)
29 NOTICE of need for ADR Phone Conference (ADR L.R. 3−5 d) (Wang, Cecillia) (Filed on 9/20/2007) (Entered: 09/20/2007)
30 Memorandum in Opposition re 16 MOTION to Dismiss filed byAlia Ahmadi. (Attachments: # 1 Exhibit A)(Wang, Cecillia) (Filed on 9/20/2007) (Entered: 09/20/2007)
31 REPLY to 30 Response to 16 Motion filed byMichael Chertoff, Robert S. Mueller, III, Alberto Gonzales, Emilio T. Gonzalez, David Still. (Attachments: # 1 Exhibit Attachment A# 2 Exhibit Attachment B)(Robins, Jeffrey) (Filed on 9/27/2007) Modified on 9/28/2007 (sis, COURT STAFF). (Entered: 09/27/2007)
32 STIPULATION AND ORDER OF DISMISSAL OF CLAIMS OF PLAINTIFFS MIAO LING HUANG AND FU ZHONG. Signed by Judge Alsup on October 2, 2007. (whalc1, COURT STAFF) (Filed on 10/2/2007) (Entered: 10/02/2007)
33 JOINT CASE MANAGEMENT STATEMENT filed by Alia Ahmadi. (Wang, Cecillia) (Filed on 10/4/2007) (Entered: 10/04/2007)
34 Minute Entry: Initial Case Management Conference NOT held on 10/11/2007 before William Alsup (Date Filed: 10/11/2007), Motion Hearing held on 10/11/2007 before William Alsup (Date Filed: 10/11/2007) re 16 MOTION to Dismiss filed by Michael Chertoff, Alberto Gonzales, Emilio T. Gonzalez, Robert S. Mueller, III, David Still. (Court Reporter Sahar McVickar.) (dt, COURT STAFF) (Date Filed: 10/11/2007) (Entered: 10/11/2007)
35 STIPULATION of Partial Dismissal of Claims of Plaintiffs Mikulicic, Petrovic, Taky and Wang by Alia Ahmadi. (Wang, Cecillia) (Filed on 10/11/2007) (Entered: 10/11/2007)
36 CASE MANAGEMENT SCHEDULING ORDER: ORDER REFERRING CASE to Magistrate Judge Bernard Zimmerman for Settlement/Mediation. Bench Trial set for 9/22/2008 07:30 AM in Courtroom 9, 19th Floor, San Francisco. Pretrial Conference set for 9/15/2008 02:00 PM in Courtroom 9, 19th Floor, San Francisco. Signed by Judge William Alsup on 10/11/2007. (whasec, COURT STAFF) (Filed on 10/11/2007) (Entered: 10/11/2007)
CASE REFERRED to Magistrate Judge Zimmerman for Settlement (sp, COURT STAFF) (Filed on 10/11/2007) (Entered: 12/12/2007)
CASE REFERRED to Magistrate Judge Magistrate Judge Bernard Zimmerman for Settlement (sp, COURT STAFF) (Filed on 10/11/2007) (Entered: 12/14/2007)
37 STIPULATION AND ORDER OF PARTIAL DISMISSAL OF CLAIMS OF PLAINTIFFS VLADIMIR MIKULICIC, BILJANA PETROVIC, EIMAN TAKY, AND YAN WANG. Signed by Judge Alsup on October 12, 2007. (whalc1, COURT STAFF) (Filed on 10/12/2007) (Entered: 10/12/2007)
38 ORDER by Judge Alsup granting in part and denying in part 16 Motion to Dismiss (whalc1, COURT STAFF) (Filed on 10/15/2007) (Entered: 10/15/2007)
39 CLERK'S NOTICE REGARDING NOTICE OF RELATED CASES (lrc, COURT STAFF) (Filed on 10/16/2007) (Entered: 10/16/2007)
40 STIPULATION to Take Class Certification Motion Off Calendar by Alia Ahmadi. (Mass, Julia) (Filed on 10/17/2007) (Entered: 10/17/2007)

Case: 3:07-cv-03455-WHA As of: 08/07/2012 09:44 AM PDT 11 of 17

10/17/2007 10/23/2007 10/23/2007
10/29/2007 10/29/2007 10/30/2007 11/15/2007 11/30/2007 12/27/2007 12/27/2007 01/10/2008
01/16/2008 01/17/2008 01/17/2008 01/17/2008 01/17/2008 01/17/2008 01/29/2008

41 STIPULATION AND ORDER TO TAKE CLASS CERTIFICATION MOTION OFF CALENDAR. Signed by Judge Alsup on October 17, 2007. (whalc1, COURT STAFF) (Filed on 10/17/2007) (Entered: 10/17/2007)
42 ORDER SCHEDULING SETTLEMENT CONFERENCE. Signed by Judge Bernard Zimmerman on 10/23/2007. (bzsec, COURT STAFF) (Filed on 10/23/2007) (Entered: 10/23/2007)
43 SECOND AMENDED ORDER SCHEDULING SETTLEMENT CONFERENCE (CORRECTING TIME OF SETTLEMENT CONFERENCE). Signed by Judge Bernard Zimmerman on 10/23/2007. (bzsec, COURT STAFF) (Filed on 10/23/2007) (Entered: 10/23/2007)
44 STIPULATION of Extension of Time to File Answer by Michael Chertoff, Robert S. Mueller, III, Alberto Gonzales, Emilio T. Gonzalez, David Still. (Olsen, Edward) (Filed on 10/29/2007) (Entered: 10/29/2007)
45 STIPULATION [Corrected] Stipulation of Extension of Time to File Answer by Michael Chertoff, Robert S. Mueller, III, Alberto Gonzales, Emilio T. Gonzalez, David Still. (Olsen, Edward) (Filed on 10/29/2007) (Entered: 10/29/2007)
46 STIPULATION AND ORDER FOR EXTENSION OF TIME TO FILE ANSWER. Signed by Judge Alsup on October 30, 2007. (whalc1, COURT STAFF) (Filed on 10/30/2007) (Entered: 10/30/2007)
47 AMENDED COMPLAINT 2nd Amended Complaint against all defendants. Filed byAlia Ahmadi. (Mass, Julia) (Filed on 11/15/2007) (Entered: 11/15/2007)
48 ANSWER to Amended Complaint byMichael Mukasey, Michael Chertoff, Robert S. Mueller, III, Emilio T. Gonzalez, David Still. (Robins, Jeffrey) (Filed on 11/30/2007) (Entered: 11/30/2007)
49 MOTION for Entry of Judgment under Rule 54(b) filed by Alia Ahmadi. Motion Hearing set for 1/31/2008 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Wang, Cecillia) (Filed on 12/27/2007) (Entered: 12/27/2007)
50 Proposed Order re 49 MOTION for Entry of Judgment under Rule 54(b) by Alia Ahmadi. (Wang, Cecillia) (Filed on 12/27/2007) (Entered: 12/27/2007)
51 Memorandum in Opposition 49 to Plaintiffs' Motion for Entry of Partial Judgment Pursuant to Fed. R. Civ. P. 54(b) filed byMichael Mukasey, Michael Chertoff, Robert S. Mueller, III, Emilio T. Gonzalez, David Still. (Robins, Jeffrey) (Filed on 1/10/2008) Modified on 1/14/2008 (sis, COURT STAFF). (Entered: 01/10/2008)
52 STIPULATION for Protective Order by Michael Mukasey, Michael Chertoff, Robert S. Mueller, III, Emilio T. Gonzalez, David Still. (Robins, Jeffrey) (Filed on 1/16/2008) (Entered: 01/16/2008)
53 ORDER APPROVING STIPULATED PROTECTIVE ORDER SUBJECT TO STATED CONDITIONS. Signed by Judge Alsup on January 17, 2008. (whalc1, COURT STAFF) (Filed on 1/17/2008) (Entered: 01/17/2008)
54 Reply Memorandum 49 in Support of Motion for Entry of Partial Judgment Pursuant to Fed. R. Civ. P. 54(B) filed byAlia Ahmadi. (Wang, Cecillia) (Filed on 1/17/2008) Modified on 1/18/2008 (sis, COURT STAFF). (Entered: 01/17/2008)
55 Proposed Order 49 (Amended) and Entry of Partial Final Judgment Pursuant to Federal Rule of Civil Procedure 54(B) by Alia Ahmadi. (Wang, Cecillia) (Filed on 1/17/2008) Modified on 1/18/2008 (sis, COURT STAFF). (Entered: 01/17/2008)
56 NOTICE by Alia Ahmadi (Amended) of Motion for Class Certification (Wang, Cecillia) (Filed on 1/17/2008) (Entered: 01/17/2008)
Set/Reset Deadlines as to 19 MOTION to Certify Class. Motion Hearing set for 2/21/2008 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (sis, COURT STAFF) (Filed on 1/17/2008) (Entered: 01/18/2008)
57 ORDER SCHEDULING FURTHER SETTLEMENT CONFERENCE. Signed by Magistrate Judge Bernard Zimmerman on 1/29/2008. (bzsec, COURT STAFF) (Filed on 1/29/2008) (Entered: 01/29/2008)

Case: 3:07-cv-03455-WHA As of: 08/07/2012 09:44 AM PDT 12 of 17

01/29/2008
01/30/2008 01/31/2008
01/31/2008 01/31/2008 02/01/2008 02/15/2008 02/20/2008 03/13/2008 03/13/2008
03/13/2008 03/14/2008 03/21/2008 03/24/2008 04/03/2008 04/03/2008

58 MOTION for Leave to File to File Surreply filed by Michael Mukasey, Michael Chertoff, Robert S. Mueller, III, Emilio T. Gonzalez, David Still. Motion Hearing set for 1/31/2008 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Attachments: # 1 Affidavit, # 2 Appendix)(Olsen, Edward) (Filed on 1/29/2008) (Entered: 01/29/2008)
59 JOINT CASE MANAGEMENT STATEMENT (Supplemental) filed by Alia Ahmadi. (Mass, Julia) (Filed on 1/30/2008) (Entered: 01/30/2008)
60 ORDER GRANTING SUPPLEMENTAL JOINT STATEMENT re 59 Case Management Statement (Joint) filed by Alia Ahmadi. Motion for Partial Judgment and Motion for Class Certification Hearing set for 4/24/2008 08:00 AM. Signed by Judge William Alsup on 1/31/08. (dt, COURT STAFF) (Filed on 1/31/2008) (Entered: 01/31/2008)
61 Minute Entry: Settlement Conference held. Further settlement conference scheduled. (Date Filed: 1/31/2008). (bzsec, COURT STAFF) (Date Filed: 1/31/2008) (Entered: 01/31/2008)
62 Minute Entry: Motion Hearing held on 1/31/2008 before William Alsup (Date Filed: 1/31/2008) re 49 MOTION for Entry of Judgment under Rule 54(b) filed by Alia Ahmadi. (Court Reporter Sahar McVickar.) (dt, COURT STAFF) (Date Filed: 1/31/2008) (Entered: 01/31/2008)
63 JOINT CASE MANAGEMENT STATEMENT (Amended Supplemental) filed by Alia Ahmadi. (Mass, Julia) (Filed on 2/1/2008) (Entered: 02/01/2008)
64 STIPULATION of Dismissal by Alia Ahmadi. (Mass, Julia) (Filed on 2/15/2008) (Entered: 02/15/2008)
65 STIPULATION AND ORDER OF PARTIAL DISMISSAL. Signed by Judge Alsup on February 19, 2008. (whalc1, COURT STAFF) (Filed on 2/20/2008) (Entered: 02/20/2008)
66 MOTION to Amend/Correct for Leave to File Third Amended Complaint filed by Alia Ahmadi. Motion Hearing set for 4/17/2008 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Attachments: # 1 Exhibit Exhibit A − Proposed Third Amended Complaint)(Wang, Cecillia) (Filed on 3/13/2008) (Entered: 03/13/2008)
67 Declaration of Cecillia D. Wang in Support of 66 MOTION to Amend/Correct for Leave to File Third Amended Complaint filed byAlia Ahmadi. (Attachments: # 1 Exhibit Exhibit A − Zhang v. Still, First Amended Complaint, # 2 Exhibit Exhibit B − Zhang v. Still, Defendants' Motion to Dismiss)(Related document(s) 66 ) (Wang, Cecillia) (Filed on 3/13/2008) (Entered: 03/13/2008)
68 Declaration of Sin Yen Ling in Support of 66 MOTION to Amend/Correct for Leave to File Third Amended Complaint filed byAlia Ahmadi. (Related document(s) 66 ) (Wang, Cecillia) (Filed on 3/13/2008) (Entered: 03/13/2008)
69 Renotice motion hearing filed byAlia Ahmadi. Motion Hearing set for 4/24/2008 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Wang, Cecillia) (Filed on 3/14/2008) (Entered: 03/14/2008)
70 STIPULATION re 57 Order To Remove Mediation Conference Of March 26, 2008, From Calendar by Michael Mukasey, Michael Chertoff, Robert S. Mueller, III, Emilio T. Gonzalez, David Still. (Stevens, Elizabeth) (Filed on 3/21/2008) (Entered: 03/21/2008)
71 STIPULATION AND ORDER. Signed by Magistrate Judge Bernard Zimmerman on 3/24/2008. (bzsec, COURT STAFF) (Filed on 3/24/2008) (Entered: 03/24/2008)
72 Memorandum in Opposition re 66 MOTION to Amend/Correct for Leave to File Third Amended Complaint filed byMichael Mukasey, Michael Chertoff, Robert S. Mueller, III, Emilio T. Gonzalez, David Still. (Robins, Jeffrey) (Filed on 4/3/2008) (Entered: 04/03/2008)
73 Memorandum in Opposition to Plaintiffs' Motion for Class Certification filed byMichael Mukasey, Michael Chertoff, Robert S. Mueller, III, Emilio T. Gonzalez, David Still. (Attachments: # 1 Exhibit A)(Robins, Jeffrey) (Filed on 4/3/2008)

Case: 3:07-cv-03455-WHA As of: 08/07/2012 09:44 AM PDT 13 of 17

04/10/2008 04/10/2008 04/24/2008
04/25/2008
04/25/2008 05/15/2008 05/30/2008
05/30/2008 06/13/2008
06/18/2008 06/18/2008 06/19/2008 06/20/2008 06/20/2008

(Entered: 04/03/2008)
74 Reply Memorandum re 66 MOTION to Amend/Correct for Leave to File Third Amended Complaint filed byAlia Ahmadi. (Wang, Cecillia) (Filed on 4/10/2008) (Entered: 04/10/2008)
75 Reply Memorandum in Support of Motion for Class Certification filed byAlia Ahmadi. (Wang, Cecillia) (Filed on 4/10/2008) (Entered: 04/10/2008)
78 Minute Entry: Motion Hearing held on 4/24/2008 before William Alsup (Date Filed: 4/24/2008) re 49 MOTION for Entry of Judgment under Rule 54(b) filed by Alia Ahmadi, 66 MOTION to Amend/Correct for Leave to File Third Amended Complaint filed by Alia Ahmadi, 19 MOTION to Certify Class filed by Alia Ahmadi. (Court Reporter Kathy Wyatt.) (dt, COURT STAFF) (Date Filed: 4/24/2008) (Entered: 04/25/2008)
76 ORDER: (1) GRANTING PLAINTIFFS MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT; (2) DENYING PLAINTIFFS MOTION FOR CLASS CERTIFICATION; AND (3) GRANTING PLAINTIFFS MOTION FOR RULE 54(b) JUDGMENT by Judge William Alsup [granting 66 Motion to Amend/Correct ; Plaintiffs is required to E−FILE the amended document]. (whasec, COURT STAFF) (Filed on 4/25/2008) (Entered: 04/25/2008)
77 RULE 54(b) JUDGMENT for defendants and against plaintiffs Alia Ahmadi, Igor Ovchinnikov and Sergei Sapozhnikov. Signed by Judge William Alsup on 4/25/2008. (whasec, COURT STAFF) (Filed on 4/25/2008) (Entered: 04/25/2008)
79 AMENDED COMPLAINT THIRD AMENDED COMPLAINT against all defendants. Filed byAmir Sayed. (Wang, Cecillia) (Filed on 5/15/2008) (Entered: 05/15/2008)
80 MOTION to Dismiss in part, Remand in Part, and Strike in Part, Plaintiffs' Third Amended Complaint, filed by Michael Mukasey, Michael Chertoff, Robert S. Mueller, III, Emilio T. Gonzalez, David Still. Motion Hearing set for 7/10/2008 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Attachments: # 1 Exhibit Declaration of Randall Ricks, # 2 Exhibit FBI−USCIS Business Plan)(Robins, Jeffrey) (Filed on 5/30/2008) (Entered: 05/30/2008)
81 ANSWER to Amended Complaint Third Amended Complaint byMichael Mukasey, Michael Chertoff, Robert S. Mueller, III, Emilio T. Gonzalez, David Still. (Robins, Jeffrey) (Filed on 5/30/2008) (Entered: 05/30/2008)
82 NOTICE OF APPEAL and REPRESENTATION STATEMENT as to 77 Judgment by Igor Ovchinnikov, Sergei Sapozhnikov, Alia Ahmadi. Filing fee $ 455. Receipt No. 34611020227. Appeal Record due by 7/14/2008. (sis, COURT STAFF) (Filed on 6/13/2008) Modified on 6/18/2008 (sis, COURT STAFF). Modified on 6/30/2008 (sis, COURT STAFF). Case No. 08−16443 (Entered: 06/18/2008)
83 Copy of Notice of Appeal and Docket sheet mailed to all counsel (sis, COURT STAFF) (Filed on 6/18/2008) (Entered: 06/18/2008)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 82 Notice of Appeal (sis, COURT STAFF) (Filed on 6/18/2008) (Entered: 06/18/2008)
84 STIPULATION to Continue Hearing on Motion to Dismiss by Amir Sayed. (Attachments: # 1 Declaration of Julia Harumi Mass ISO Stipulation to Continue Hearing)(Mass, Julia) (Filed on 6/19/2008) (Entered: 06/19/2008)
85 STIPULATION AND ORDER TO CONTINUE HEARING ON MOTION TO DISMISS. Signed by Judge Alsup on June 20, 2008. (whalc2, COURT STAFF) (Filed on 6/20/2008) (Entered: 06/20/2008)
Set/Reset Deadlines as to 80 MOTION to Dismiss in part, Remand in Part, and Strike in Part, Plaintiffs' Third Amended Complaint,. Motion Hearing set for 7/17/2008 08:00 AM. (rcs, COURT STAFF) (Filed on 6/20/2008) (Entered: 06/30/2008)

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06/23/2008 06/25/2008 06/26/2008 06/26/2008 06/26/2008 06/26/2008 06/26/2008 06/26/2008 07/03/2008
07/11/2008 07/18/2008 07/18/2008
07/30/2008

86 Transcript Designation &Ordering Form for Proceedings Held on 10/11/2007 − [C/R: Sahar McVickar] &4/24/2008 − [C/R: Kathy Wyatt] before Judge Alsup Filed by Plaintiffs. (tn, COURT STAFF) (Filed on 6/23/2008) (Entered: 06/25/2008)
92 USCA Case Number 08−16443 Ninth Circuit for 82 Notice of Appeal, filed by Igor Ovchinnikov, Alia Ahmadi, Sergei Sapozhnikov. (sis, COURT STAFF) (Filed on 6/25/2008) (Entered: 06/30/2008)
87 MEMORANDUM in Opposition re 80 MOTION to Dismiss in part, Remand in Part, and Strike in Part, Plaintiffs' Third Amended Complaint, filed byAmir Sayed. (Related document(s) 80 ) (Wang, Cecillia) (Filed on 6/26/2008) (Entered: 06/26/2008)
88 Declaration of Cecillia D. Wang in Support of 87 Memorandum in Opposition to Defendants' Motion to Dismiss in Part, to Remand in Part, and to Strike in Part filed byAmir Sayed. (Attachments: # 1 Exhibit A)(Related document(s) 87 ) (Wang, Cecillia) (Filed on 6/26/2008) Modified on 6/27/2008 (ewn, COURT STAFF). (Entered: 06/26/2008)
89 Declaration of Julia Harumi in Support of 87 Memorandum in Opposition to Defendants' Motion to Dismiss in Part, to Remand in Part, and to Strike in Part filed byAmir Sayed. (Related document(s) 87 ) (Wang, Cecillia) (Filed on 6/26/2008) Modified on 6/27/2008 (ewn, COURT STAFF). (Entered: 06/26/2008)
90 Declaration of Biren Shah in Support of 87 Memorandum in Opposition to Defendants' Motion to Dismiss in Part, to Remand in Part, and to Strike in Part filed byAmir Sayed. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 87 ) (Wang, Cecillia) (Filed on 6/26/2008) (Entered: 06/26/2008)
91 Proposed Order re 87 Memorandum in Opposition to Defendants' Motion to Dismiss in Part, to Remand in Part, and to Strike in Part by Amir Sayed. (Wang, Cecillia) (Filed on 6/26/2008) (Entered: 06/26/2008)
93 TIME SCHEDULE ORDER of USCA as to 82 Notice of Appeal, filed by Igor Ovchinnikov, Alia Ahmadi, Sergei Sapozhnikov (sis, COURT STAFF) (Filed on 6/26/2008) (Entered: 07/02/2008)
94 Reply to Opposition re 80 MOTION to Dismiss in part, Remand in Part, and Strike in Part, Plaintiffs' Third Amended Complaint, filed byMichael Mukasey, Michael Chertoff, Robert S. Mueller, III, Emilio T. Gonzalez, David Still. (Attachments: # 1 Exhibit Second Declaration of Randall Ricks, # 2 Exhibit Declaration of Ted Quizon)(Robins, Jeffrey) (Filed on 7/3/2008) (Entered: 07/03/2008)
95 CLERK'S NOTICE Rescheduling Motion Hearing Time. Motion Hearing set for 7/17/2008 02:00 PM in Courtroom 9, 19th Floor, San Francisco. (dt, COURT STAFF) (Filed on 7/11/2008) (Entered: 07/11/2008)
96 Minute Entry: Motion re: Dfts' Motion to Dismiss, to Remand, and Strike Hearing held on 7/17/2008 before William Alsup (Date Filed: 7/18/2008). The Court takes the matter under submission. (Court Reporter Katherine Wyatt.) (fj, COURT STAFF) (Date Filed: 7/18/2008) (Entered: 07/18/2008)
97 ORDER: (1) GRANTING PLAINTIFF'S REQUEST FOR VOLUNTARY DISMISSAL; (2) GRANTING IN PART DEFENDANTS' MOTION TO REMAND; AND (3) GRANTING PLAINTIFF'S REQUEST TO DISMISS SECOND AND THIRD CLAIMS AS MOOT by Judge William Alsup [granting in part and denying in part 80 Motion to Dismiss]. (whasec, COURT STAFF) (Filed on 7/18/2008) (Entered: 07/18/2008)
98 Transcript of Proceedings held on 4−24−08, before Judge William Alsup. Court Reporter/Transcriber Katherine Wyatt, Telephone number 415−487−9834. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from

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07/30/2008 08/04/2008
08/04/2008 08/21/2008 08/28/2008 09/02/2008 09/03/2008 12/01/2008 12/01/2008 12/01/2008 12/01/2008
12/01/2008 12/01/2008

date of this filing. Release of Transcript Restriction set for 10/27/2008. (kpw, COURT STAFF) (Filed on 7/30/2008) (Entered: 07/30/2008)
99 STATUS REPORT by Michael Mukasey, Robert S. Mueller, III, Emilio T. Gonzalez, David Still. (Attachments: # 1 Exhibit Declaration of Richard Valeika)(Robins, Jeffrey) (Filed on 7/30/2008) (Entered: 07/30/2008)
100 Transcript of Proceedings held on 10/11/07, before Judge William Alsup. Court Reporter/Transcriber Sahar McVickar, Telephone number (415) 626−6060. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 10/30/2008. (McVickar, Sahar) (Filed on 8/4/2008) (Entered: 08/04/2008)
101 ORDER CLOSING CASE. Signed by Judge Alsup on August 4, 2008. (whalc2, COURT STAFF) (Filed on 8/4/2008) (Entered: 08/04/2008)
102 REQUEST FOR STIPULATED FORM OF JUDGMENT. Signed by Judge Alsup on August 21, 2008. (whalc2, COURT STAFF) (Filed on 8/21/2008) (Entered: 08/21/2008)
103 STIPULATION re Proposed Form of Final Judgment by Amir Sayed. (Wang, Cecillia) (Filed on 8/28/2008) (Entered: 08/28/2008)
104 STIPULATED FORM OF FINAL JUDGMENT. Signed by Judge Alsup on September 2, 2008. (whalc2, COURT STAFF) (Filed on 9/2/2008) (Entered: 09/02/2008)
105 NOTICE by Amir Sayed of Association of Counsel (Schwartz, Amitai) (Filed on 9/3/2008) (Entered: 09/03/2008)
106 MOTION for Attorney Fees filed by Yan Wang, Angel Gentchev, Jiwei Huang, Igor Ovchinnikov, Sergei Sapozhnikov, Helga Scovajsa, Amir Sayed, Alia Ahmadi. Motion Hearing set for 1/22/2009 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Schwartz, Amitai) (Filed on 12/1/2008) (Entered: 12/01/2008)
107 Declaration of Julia Harumi Mass in Support of 106 MOTION for Attorney Fees filed byYan Wang, Angel Gentchev, Jiwei Huang, Igor Ovchinnikov, Sergei Sapozhnikov, Helga Scovajsa, Amir Sayed, Alia Ahmadi. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 106 ) (Schwartz, Amitai) (Filed on 12/1/2008) (Entered: 12/01/2008)
108 Declaration of Sin Yen Ling in Support of 106 MOTION for Attorney Fees filed byYan Wang, Angel Gentchev, Jiwei Huang, Igor Ovchinnikov, Sergei Sapozhnikov, Helga Scovajsa, Amir Sayed, Alia Ahmadi. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 106 ) (Schwartz, Amitai) (Filed on 12/1/2008) (Entered: 12/01/2008)
109 *** FILED IN ERROR. PLEASE SEE DOCKET # 112 . *** Declaration in Support of 106 MOTION for Attorney Fees filed byYan Wang, Angel Gentchev, Jiwei Huang, Igor Ovchinnikov, Sergei Sapozhnikov, Helga Scovajsa, Amir Sayed, Alia Ahmadi. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Related document(s) 106 ) (Schwartz, Amitai) (Filed on 12/1/2008) Modified on 12/2/2008 (ewn, COURT STAFF). (Entered: 12/01/2008)
110 Declaration of Steven L. Mayer in Support of 106 MOTION for Attorney Fees filed byYan Wang, Angel Gentchev, Jiwei Huang, Igor Ovchinnikov, Sergei Sapozhnikov, Helga Scovajsa, Amir Sayed, Alia Ahmadi. (Related document(s) 106 ) (Schwartz, Amitai) (Filed on 12/1/2008) (Entered: 12/01/2008)
111 Proposed Order re 106 MOTION for Attorney Fees by Yan Wang, Angel Gentchev, Jiwei Huang, Igor Ovchinnikov, Sergei Sapozhnikov, Helga Scovajsa, Amir Sayed, Alia Ahmadi. (Schwartz, Amitai) (Filed on 12/1/2008) (Entered: 12/01/2008)

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12/01/2008 12/01/2008
12/02/2008 12/18/2008 12/22/2008 12/30/2008 12/31/2008 01/08/2009 01/08/2009 01/08/2009 01/14/2009 01/22/2009 01/28/2009

112 Declaration of Amitai Schwartz in Support of 106 MOTION for Attorney Fees Correction of Docket # 109 filed byYan Wang, Angel Gentchev, Jiwei Huang, Igor Ovchinnikov, Sergei Sapozhnikov, Helga Scovajsa, Amir Sayed, Alia Ahmadi. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Related document(s) 106 ) (Schwartz, Amitai) (Filed on 12/1/2008) (Entered: 12/01/2008)
113 Declaration of Cecillia D. Wang in Support of 106 MOTION for Attorney Fees filed byYan Wang, Angel Gentchev, Jiwei Huang, Igor Ovchinnikov, Sergei Sapozhnikov, Helga Scovajsa, Amir Sayed, Alia Ahmadi. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, *** # 4 Exhibit D FILED IN ERROR. DOCUMENT LOCKED. PLEASE SEE DOCKET # 114 . *** )(Related document(s) 106 ) (Schwartz, Amitai) (Filed on 12/1/2008) Modified on 12/2/2008 (ewn, COURT STAFF). Modified on 12/3/2008 (ewn, COURT STAFF). (Entered: 12/01/2008)
114 EXHIBITS re 113 Declaration in Support, of Cecillia D. Wang, Exhibit D filed byYan Wang, Angel Gentchev, Jiwei Huang, Igor Ovchinnikov, Sergei Sapozhnikov, Helga Scovajsa, Amir Sayed, Alia Ahmadi. (Related document(s) 113 ) (Schwartz, Amitai) (Filed on 12/2/2008) (Entered: 12/02/2008)
115 Declaration of Cecillia D. Wang in Support of 106 MOTION for Attorney Fees Supplemental Declaration filed byYan Wang, Angel Gentchev, Jiwei Huang, Igor Ovchinnikov, Sergei Sapozhnikov, Helga Scovajsa, Fu Zhong, Amir Sayed, Alia Ahmadi, Miao Ling Huang. (Related document(s) 106 ) (Schwartz, Amitai) (Filed on 12/18/2008) (Entered: 12/18/2008)
116 MANDATE of USCA− Appeal is Voluntarily Dismissed − this order shall serve as the mandate as to 82 Notice of Appeal, filed by Igor Ovchinnikov, Alia Ahmadi, Sergei Sapozhnikov (sis, COURT STAFF) (Filed on 12/22/2008) (Entered: 12/30/2008)
117 CLERKS Letter Spreading Mandate to Counsel (sis, COURT STAFF) (Filed on 12/30/2008) (Entered: 12/30/2008)
118 Memorandum in Opposition re 106 MOTION for Attorney Fees filed byMichael Mukasey, Michael Chertoff, Robert S. Mueller, III, Emilio T. Gonzalez, David Still. (Robins, Jeffrey) (Filed on 12/31/2008) (Entered: 12/31/2008)
119 Reply Memorandum re 106 MOTION for Attorney Fees filed byYan Wang, Angel Gentchev, Jiwei Huang, Igor Ovchinnikov, Sergei Sapozhnikov, Helga Scovajsa, Amir Sayed, Alia Ahmadi, Miao Ling Huang. (Schwartz, Amitai) (Filed on 1/8/2009) (Entered: 01/08/2009)
120 Declaration in Support of 106 MOTION for Attorney Fees Supplemental Declaration of Amitai Schwartz filed byYan Wang, Angel Gentchev, Jiwei Huang, Igor Ovchinnikov, Sergei Sapozhnikov, Helga Scovajsa, Amir Sayed, Alia Ahmadi, Miao Ling Huang. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 106 ) (Schwartz, Amitai) (Filed on 1/8/2009) (Entered: 01/08/2009)
121 Declaration of Cecillia D. Wang in Support of 106 MOTION for Attorney Fees Second Supplemental Declaration filed byYan Wang, Angel Gentchev, Jiwei Huang, Igor Ovchinnikov, Sergei Sapozhnikov, Helga Scovajsa, Amir Sayed, Alia Ahmadi. (Related document(s) 106 ) (Schwartz, Amitai) (Filed on 1/8/2009) (Entered: 01/08/2009)
122 CLERKS NOTICE Rescheduling Hearing. Motion Hearing set for 1/22/2009 02:00 PM in Courtroom 9, 19th Floor, San Francisco. (dt, COURT STAFF) (Filed on 1/14/2009) (Entered: 01/14/2009)
123 Minute Entry: Motion Hearing held on 1/22/2009 before William Alsup (Date Filed: 1/22/2009) re 106 MOTION for Attorney Fees filed by Angel Gentchev, Helga Scovajsa, Amir Sayed, Igor Ovchinnikov, Alia Ahmadi, Sergei Sapozhnikov, Yan Wang, Jiwei Huang. (Court Reporter Kathy Wyatt.) (dt, COURT STAFF) (Date Filed: 1/22/2009) (Entered: 01/22/2009)
124 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR ATTONREY'S FEES by Judge William Alsup [granting in part and denying in part 106 Motion for Attorney Fees]. (whasec, COURT STAFF)

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02/11/2009 03/25/2009

(Filed on 1/28/2009) (Entered: 01/28/2009)
125 NOTICE by Vandewalle−Callinan, Amir Sayed re 124 Order on Motion for Attorney Fees Conditional Acceptance of Amount (Schwartz, Amitai) (Filed on 2/11/2009) (Entered: 02/11/2009)
126 JUDGMENT on Attorney Fees.. Signed by Judge Alsup on March 25, 2009. (whalc2, COURT STAFF) (Filed on 3/25/2009) (Entered: 03/25/2009)