1 CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW

2

Peter A. Schey, Cal. Bar No. 58232 Carlos R. Holguin, Cal. Bar No. 90754

3 Cynthia Lucas, Cal. Bar No. 247335
256 S. Occidental Blvd.
4 Los Angeles, Ca. 90057

5 Telephone: (213) 388-8693 exts. 104, 109, 116
Facsimile: (213) 386-9484

6
ASIAN PACIFIC ISLANDER LEGAL OUTREACH
7 Victor M. Hwang, Cal. Bar No. 162467

8 Ivy C. Lee, Cal. Bar No. 202375
1188 Franklin Street, Suite 202

9 San Francisco, CA 94109

10

Telephone: (415) 567-6255 exts. 24, 34 Facsimile: (415) 567-6248

11
Attorneys for Plaintiffs (additional counsel listed next page)
12

13

IN THE UNITED STATES DISTRICT COURT

14
FOR THE NORTHERN DISTRICT OF CALIFORNIA
15

16

SAN FRANCISCO DIVISION

17 CATHOLIC CHARITIES CYO (SAN

) Case No.

FRANCISCO);

)

18

INTERNATIONAL INSTITUTE OF THE EAST BAY; ) COMPLAINT FOR

19 VOCES UNIDAS PROJECT;

) DECLARATORY AND

CENTRAL AMERICAN RESOURCE CENTER
20 (LOS ANGELES);

) INJUNCTIVE RELIEF )

21

HERMANDAD MEXICANA NACIONAL; SANCTUARY FOR FAMILIES (NEW YORK);

) ) [CLASS ACTION]

22 FRIENDLY HOUSE (PHOENIX);

)

DIOCESAN MIGRANT & REFUGEE SERVICES, )

23 INC. OF EL PASO; SERGIO BUCIO PEREZ AND )

24 ANDRES BUCIO PEREZ, THROUGH THEIR NEXT )

FRIEND, SANDRA BUCIO; SANDRA BUCIO;

)

25 XIOMARA CASTRO; RAMONA QUINTERO; LUIS )

26

R. NUNEZ HERNANDEZ; RICARDO NUNEZ HERNANDEZ; ELIZABETH LOPEZ GOMEZ;

) )

27 MARIA ESTERVINA PEREZ; GIOVANA

)

SAAVEDRA; ELEUTERIO RODRIGUEZ RUIZ;

)

28 FELIPE SANCHEZ MARTINEZ; FRANCISCA

)

RAMIREZ ALVAREZ; CONSTANTINA CAMPOS; )

IRMA MORENO SANVICENTE; ROSA GALAVIZ; )

1

MARIA LUISA ARROYO; JUAN FRANCISCO

)

2

ROCHA ROCHA; JORGE DOMINGUEZ RIVERA, ) )

3

Plaintiffs,

)

-vs-

)

4

)

5

MICHAEL CHERTOFF, Secretary,

)

U.S. Department of Homeland Security;

)

6

)

7

UNITED STATES CITIZENSHIP AND

)

IMMIGRATION SERVICES, U.S. DEPARTMENT )

8

OF HOMELAND SECURITY,

)

)

9

Defendants.

)

10

_

)

11 Plaintiffs’ counsel, continued

SANCTUARY FOR FAMILIES
12 Julie E. Dinnerstein, N.Y. Bar No. 2779510

13 Sanctuary for Families
Brooklyn Family Justice Center
14 350 Jay Street, 15th Floor

15

Brooklyn, NY 11201 Telephone: (718) 250-5103

16 Facsimile: (718) 624-4240

17 CENTRAL AMERICAN RESOURCE CENTER
18 Daniel Sharp, Cal. Bar No. 237473
2845 West 7th Street
19 Los Angeles, CA 90005

20

Telephone: (213) 385-7800 Facsimile: (213) 385-1094

21
PUBLIC LAW CENTER
22 Kenneth W. Babcock, Cal. Bar No. 100183

23 Kirsten M. Kreymann, Cal. Bar No. 236630
601 Civic Center Drive West
24 Santa Ana, CA 92701

25

Telephone: (714) 541-1010 Fax: (714) 541-5157

26
James Parry Eyster, Mich. Bar No. P37894
27 3475 Plymouth Road
28 Ann Arbor, MI 48105
Telephone: (734) 827-7929

Complaint
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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1 Facsimile: (734) 827-7925

2 BUSTAMANTE AND ASSOCIATES, PLC

3 Andres Bustamante, Cal. Bar No. 147025
634 S. Spring St., Suite 910
4 Los Angeles, CA 90014

5 Telephone: (213) 891-9009
Facsimile: (213) 627-1655

6

7

Of counsel: Brooke Kirkland, Ill. Bar No. 219351

8 Center for Human Rights and Constitutional Law

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Complaint
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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1

I

2

PRELIMINARY STATEMENT

3

1. This is a class action seeking declaratory and injunctive relief
4

5 compelling Defendants Michael Chertoff, Secretary of the U.S. Department of

6 Homeland Security (“DHS”) and the United States Citizenship and Immigration

7 Services (“USCIS”) to discharge their statutory duty to permit immigrant crime 8
victims who assist law enforcement officials in the investigation or prosecution of
9
10 criminal offenders to apply for lawful immigration status. On October 28, 2000—

11 over six years ago—the Victims of Trafficking and Violence Protection Act of

12 2000, Pub. L. No. 106-386, Div. A, 114 Stat. 1464 (2000), codified at, inter alia, 8 13
U.S.C. § 1101(a)(15)(U) (“Crime Victims Act” or “Act”), was signed into law.
14 15 Among other things, the Crime Victims Act permits immigrants who are victims

16 of serious crimes and who assist law enforcement to apply for and receive “U”

17 visas. After possessing U status for three years, such immigrants may apply for
18
lawful permanent resident status. Section 1101(a)(15)(U) reflects Congress’s
19 20 judgment that certain crime victims should be permitted to remain lawfully in

21 the United States both for humanitarian reasons and so that they may help bring

22 dangerous, violent criminals to justice.
23
2. Despite having six years to do so, defendants have unlawfully failed to
24 25 implement the U visa program. Defendants have failed to promulgate

26 regulations, establish procedures, or publish application forms through which

27 crime victims may apply for U visas. Defendants have set no filing fee, nor have 28
they trained and assigned officers to adjudicate U visa applications. Nor have

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1 defendants referred immigrant crime victims for social services, as required by

2 the 6-year old U visa law. When individuals who are prima facie eligible for U 3
visas, including the named individual plaintiffs herein, request defendants to
4
5 issue them U visas (or promulgate regulations and procedures permitting them

6 to apply for such visas), defendants have refused. Consequently, immigrant

7 crime victims have no way to apply for the immigration benefits Congress

8
conferred on them some six years ago.
9

10

3. Plaintiffs and crime victims’ advocates have repeatedly urged

11 defendants to promulgate regulations and procedures implementing the U visa

12 program and to begin issuing eligible individuals U visas without further delay.
13
Defendants have ignored these entreaties, and plaintiffs now seek judicial relief
14 15 on behalf of themselves and those similarly situated requiring defendants to

16 discharge their statutory duty and to restore plaintiffs and their class members to

17 the position they would be in but for defendants’ persistent non-feasance of their
18
lawful obligations. Defendants’ failure to implement the U visa statute not only
19 20 unlawfully ignores an existing law, it also discourages immigrant victims of

21 crimes from reporting such crimes and cooperating with law enforcement, and

22 more importantly often allows the perpetrators of crimes to avoid arrest and
23
conviction for such crimes.
24

25

26

27

28

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1

II

2

JURISDICTION AND VENUE

3
4. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331
4

5 (federal question jurisdiction). Declaratory judgment is sought pursuant to 28

6 U.S.C. §§ 2201-02.

7

5. Venue is properly in this district pursuant to 28 U.S.C. § 1391(b) and

8
(e)(1), (2) and (4), because some of the acts complained of occurred in this
9

10 district, some of the plaintiffs reside in this district, defendants have offices in

11 this district, and no real property is involved in this action.

12

III

13
PARTIES
14

15

6. Plaintiff CATHOLIC CHARITIES CYO is a non-profit organization serving

16 the immigrant communities of San Francisco, Marin, and San Mateo Counties in

17 California. Among other activities, CATHOLIC CHARITIES CYO provides legal aid
18
to indigent immigrants who wish to legalize their status. These services include
19 20 assistance to immigrant victims of serious crimes who have cooperated with law

21 enforcement agencies. Defendants’ failure to implement the U visa provisions of

22 the Crime Victims Act and refusal to grant crime victims U visas interferes with
23
CATHOLIC CHARITIES CYO’s work and makes the achievement of its goals
24 25 substantially more difficult. The unavailability of U visas requires CATHOLIC
26 CHARITIES CYO to assist clients to apply for two benefits instead of one. First, it

27 must assist clients to apply for “deferred action,” a discretionary status offered

28 by the USCIS to temporarily suspend removal proceedings against certain

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1 immigrants and for temporary employment authorization, relief that must be

2 renewed through a new application annually. This is the only temporary relief 3
that defendants have offered to U visa applicants willing to seek relief prior to
4
5 the issuance of a formal application form and regulations describing those

6 immigrants whom defendants consider eligible for U visa status. Second, if and

7 when implementing regulations are finally promulgated, CATHOLIC CHARITIES 8
CYO must then assist its clients to apply for U visas. Defendants’ non-feasance
9 10 and other unlawful policies as herein alleged are therefore diverting the limited

11 resources of CATHOLIC CHARITIES CYO and making their work and achievement

12 of their goals more difficult and costly. CATHOLIC CHARITIES CYO’s delivery of
13
services to crime victims eligible for U visas is more difficult, time-consuming,
14 15 and expensive than is its delivery of like services to persons who seek lawful

16 status under provisions of the Immigration and Nationality Act for which

17 implementing regulations have been duly promulgated.
18
7. Plaintiff INTERNATIONAL INSTITUTE OF THE EAST BAY (“IIEB”) is a non-
19 20 profit legal organization that provides free and low-cost legal and social services

21 to immigrants and refugees in the East Bay of Northern California. Among other

22 activities, IIEB provides legal aid to indigent immigrants who wish to legalize the
23
status. These services include assistance to immigrant victims of serious crimes
24 25 who have cooperated with law enforcement agencies. The unavailability of U
26 visas requires IIEB to assist clients to apply for two benefits instead of one. First,

27 it must assist clients to apply for “deferred action” and for temporary

28 employment authorization, relief that must be renewed through a new

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1 application annually. Second, if and when implementing regulations are finally

2 promulgated, IIEB must then assist its clients to apply for U visas. Defendants’ 3
non-feasance and other unlawful policies as herein alleged are therefore
4
5 diverting the limited resources of IIEB and making their work and achievement

6 of their goals more difficult and costly. IIEB’s delivering services to crime victims

7 eligible for U visas is more difficult, time-consuming, and expensive than is its 8
delivering like services to persons who seek lawful status under provisions of the
9 10 Immigration and Nationality Act for which implementing regulations have been

11 duly promulgated.

12

8. Plaintiff VOCES UNIDAS PROJECT OF THE CENTER FOR HUMAN RIGHTS

13
AND CONSTITUTIONAL LAW (“VOCES UNIDAS”) is a national program addressing
14

15 the needs of Mexican national immigrants residing in the United States who are

16 survivors of domestic abuse and victims of crime. The VOCES UNIDAS project

17 provides technical support and funding for numerous non-profit organizations
18
providing free legal services to immigrant survivors of domestic violence and
19 20 victims of crime. It also provides free legal services to low-income and under-

21 served immigrants, including those who wish to apply for U visas. Defendants’

22 failure to implement the U visa provisions of the Crime Victims Act and refusal
23
to grant crime victims U visas interferes with VOCES UNIDAS’s work and makes
24 25 the achievement of VOCES UNIDAS’s goals substantially more difficult. The
26 unavailability of U visas requires that VOCES UNIDAS provide a range of technical

27 support services it would not have to provide if defendants issued regulations

28 setting forth eligibility standards and procedures for adjudicating U visas. The

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1 absence of regulations also requires that the VOCES UNIDAS project assist its

2 direct services clients to apply for two benefits instead of one. First, it must assist 3
clients to apply for “deferred action” and for temporary employment
4
5 authorization, relief that must be renewed through a new application annually.

6 Second, if and when implementing regulations are finally promulgated, VOCES

7 UNIDAS must then assist its clients to apply for U visas. Defendants’ non-feasance 8
and other unlawful policies as herein alleged are therefore diverting the limited
9 10 resources of VOCES UNIDAS and making their work and achievement of their

11 goals more difficult and costly. VOCES UNIDAS’s delivering services to crime

12 victims eligible for U visas is more difficult, time-consuming, and expensive than
13
is its delivering like services to persons who seek lawful status under provisions
14 15 of the Immigration and Nationality Act for which implementing regulations have

16 been duly promulgated.

17

9. Plaintiff CENTRAL AMERICAN RESOURCE CENTER (“CARECEN”) is a

18
California not-for-profit corporation located in Los Angeles, California.
19
20 CARECEN‘s purposes include protecting and promoting fair and lawful public

21 policies toward immigrants, ensuring compliance with federal laws and the

22 United States Constitution by federal, state and local government agencies in
23
their treatment of immigrants, and delivering social services and humanitarian
24 25 assistance to immigrants and their families. These services include assistance to
26 immigrant victims of serious crimes who have cooperated with law enforcement

27 agencies. The unavailability of U visas requires CARECEN to assist clients to

28 apply for two benefits instead of one. First, it must assist clients to apply for

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1 “deferred action” and for temporary employment authorization, relief that must

2 be renewed through a new application annually. Second, if and when 3
implementing regulations are finally promulgated, CARECEN must then assist
4
5 its clients to apply for U visas. Defendants’ non-feasance and other unlawful

6 policies as herein alleged are therefore diverting the limited resources of

7 CARECEN and making their work and achievement of their goals more difficult 8
and costly. CARECEN’s delivering services to crime victims eligible for U visas is
9 10 more difficult, time-consuming, and expensive than is its delivering like services

11 to persons who seek lawful status under provisions of the Immigration and

12 Nationality Act for which implementing regulations have been duly

13
promulgated.
14

15

10. Plaintiff HERMANDAD MEXICANA NACIONAL (“HMN”) is a

16 membership and social and legal services not-for-profit California corporation

17 with several offices located in the County of Los Angeles, California. HMN’s ‘s
18
purposes include protecting and promoting fair and lawful public policies
19 20 toward immigrants, ensuring compliance with federal laws and the United States

21 Constitution by federal, state and local government agencies in their treatment of

22 immigrants, and delivering social services and humanitarian assistance to
23
immigrants and their families. HMN has approximately 15,000 members, most of
24 25 whom are immigrants. HMN has members and clients who are the victims of
26 crime in the United States and who have cooperated with law enforcement

27 agencies. As a direct and proximate result of defendants’ non-feasance as alleged

28 herein, HMN’s members are unable to obtain U visas. Some members are

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1 unwilling to apply for deferred action because they fear such applications may

2 prejudice their eligibility for U visas if defendants later issue U visa guidelines or 3
regulations that are inconsistent with the guidelines defendants currently use in
4
5 determining whether to grant deferred action. The unavailability of U visas

6 requires HMN to assist clients to apply for two benefits instead of one. First, it

7 must assist clients to apply for “deferred action” and for temporary employment 8
authorization, relief that must be renewed through a new application annually.
9 10 Second, if and when implementing regulations are finally promulgated, HMN

11 must then assist its clients to apply for U visas. Defendants’ non-feasance and

12 other unlawful policies as herein alleged are therefore diverting the limited
13
resources of HMN and making their work and achievement of their goals more
14 15 difficult and costly. HMN’S delivering services to crime victims eligible for U

16 visas is more difficult, time-consuming, and expensive than is its delivering like

17 services to persons who seek lawful status under provisions of the Immigration
18
and Nationality Act for which implementing regulations have been duly
19 20 promulgated.

21

11. Plaintiff SANCTUARY FOR FAMILIES (“SFF”) is a New York not-for-

22 profit corporation located in New York, New York. SFF is dedicated to providing
23
services to victims of domestic violence. Among other activities, SFF provides
24 25 free legal services to low-income and under-served immigrants. These services
26 include assistance to immigrant victims of serious crimes who have cooperated

27 with law enforcement agencies. Defendants’ failure to implement the U visa

28 provisions of the Crime Victims Act and refusal to grant crime victims U visas

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1 interferes with SFF’s work and makes the achievement of SFF’s goals

2 substantially more difficult. The unavailability of U visas requires SFF to assist 3
clients apply for two benefits instead of one: deferred action and, when and if
4
5 implementing regulations are promulgated, U visas. In addition, SFF has been

6 required to expend resources urging defendants to promulgate U visa

7 regulations and to issue its clients actual U visas. Defendants’ non-feasance and 8
other unlawful policies as herein alleged are therefore diverting the limited
9 10 resources of SFF and making their work and achievement of their goals more

11 difficult and costly. SFF’S delivering services to crime victims eligible for U visas

12 is more difficult, time-consuming, and expensive than is its delivering like
13
services to persons who seek lawful status under provisions of the Immigration
14 15 and Nationality Act for which implementing regulations have been duly

16 promulgated.

17

12. Plaintiff FRIENDLY HOUSE is an Arizona not-for-profit corporation

18
located in Phoenix, Arizona. Among other activities, FRIENDLY HOUSE provides
19
20 low cost, on-site immigration services to the immigrant community in greater

21 Maricopa County in the State of Arizona. These services include assistance to

22 immigrant victims of serious crimes who have cooperated with law enforcement
23
agencies. The unavailability of U visas requires FRIENDLY HOUSE to assist clients
24 25 to apply for two benefits instead of one. First, it must assist clients to apply for
26 “deferred action” and for temporary employment authorization, relief that must

27 be renewed through a new application annually. Second, if and when

28 implementing regulations are finally promulgated, FRIENDLY HOUSE must then

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1 assist its clients to apply for U visas. Defendants’ non-feasance and other

2 unlawful policies as herein alleged are therefore diverting the limited resources 3
of FRIENDLY HOUSE and making their work and achievement of their goals more
4
5 difficult and costly. FRIENDLY HOUSE’s delivering services to crime victims

6 eligible for U visas is more difficult, time-consuming, and expensive than is its

7 delivering like services to persons who seek lawful status under provisions of the 8
Immigration and Nationality Act for which implementing regulations have been
9 10 duly promulgated.

11

13. Plaintiff DIOCESAN MIGRANT & REFUGEE SERVICES, INC (“DMRS”) is a

12 not-for-profit legal aid clinic located in El Paso, Texas. Among other activities,
13
DMRS provides free and low cost legal services to the low-income immigrants
14 15 eligible to legalize their status, including immigrant victims of crime who

16 cooperated with law enforcement agencies. The unavailability of U visas requires

17 DMRS to assist clients to apply for two benefits instead of one. First, it must
18
assist clients to apply for “deferred action” and for temporary employment
19 20 authorization, relief that must be renewed through a new application annually.

21 Second, if and when implementing regulations are finally promulgated, DMRS

22 must then assist its clients to apply for U visas. DMRS also has several clients
23
who are the immigrant parents of United States citizen children who are the
24 25 victims of crime and who or whose parents cooperated with law enforcement
26 agencies in the investigation or prosecution of such crimes, such that 8 U.S.C. §§

27 1101(U)(i)(III) in conjunction with 1184(p) operate to deny U visa eligibility to

28 these clients while granting such benefit to the immigrant parents of

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1 undocumented and lawful permanent resident children. Defendants’ non-

2 feasance and other unlawful policies as herein alleged are therefore diverting the 3
limited resources of DMRS and making their work and achievement of their
4
5 goals more difficult and costly. DMRS’s delivering services to crime victims

6 eligible for U visas is more difficult, time-consuming, and expensive than is its

7 delivering like services to persons who seek lawful status under provisions of the 8
Immigration and Nationality Act for which implementing regulations have been
9 10 duly promulgated.

11

14. Plaintiffs Sandra Bucio, Xiomara Castro, Ramona Quintero, Luis R.

12 Nuñez Hernandez, Ricardo Nuñez Hernandez, Elizabeth Lopez Gomez, Maria
13
Estervina Perez, Giovana Saavedra, Eleuterio Rodriguez Ruiz, Felipe Sanchez
14 15 Martinez, Francisca Ramirez Alvarez, Constantina Campos, Irma Moreno

16 Sanvicente, Rosa Galaviz, Maria Luisa Arroyo, Juan Francisco Rocha Rocha, and

17 Jorge Dominguez Rivera are victims of crime in the United States. Each plaintiff

18
is prima facie eligible for a U visa under federal law because —
19

20

(a) she or he “suffered substantial physical or mental abuse as a result of

21

having been the victim of criminal activity;”

22

(b) she or he “possesses information concerning the criminal activity;”

23
(c) she or he “has been helpful, is being helpful, or is likely to be helpful to

24

25

Federal, State, or local law enforcement official investigating or

26

prosecuting…[the] criminal activity;”

27

(d) “the criminal activity…violated the laws of the United States or

28

occurred in the United States,” and

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1

(e) “the criminal activity…involv[ed] … rape, … trafficking, … domestic

2

violence, … sexual assault, false imprisonment … [or] felonious assault…”

3
8 U.S.C. § 1101(a)(15)(U). As alleged herein defendants have unlawfully refused
4

5 to afford said plaintiffs a means to apply for and receive U visas.

6

15. Plaintiffs have petitioned Defendants, in writing, to issue them U visas

7 and to promulgate regulations implementing the Crime Victims Act. Defendants 8
have unlawfully ignored these requests, just as they have ignored for over six
9 10 years their duty to faithfully execute the law as enacted by Congress.

11

16. Plaintiffs SERGIO BUCIO PEREZand ANDRES BUCIO PEREZare minor

12 children of Plaintiff SANDRA BUCIO. The Crime Victims Act provides in part that
13
“the Attorney General may also grant status … based upon certification of a
14 15 government official listed in clause (i)(III) [including “Federal, State, or local law

16 enforcement official[s]…”] that an investigation or prosecution would be harmed

17 without the assistance of the … child … of the [crime victim].” 8 U.S.C. §
18
1101(a)(15)(U)(ii). Local law enforcement officials made such certifications for
19 20 each of the above-mentioned minor plaintiffs. Defendants have unlawfully

21 refused to adjudicate the U visa applications filed on behalf of Plaintiffs MINOR 1

22 and MINOR 2. Plaintiffs SERGIOand ANDRES BUCIO PEREZsue by and through

23
their next friend and parent, Plaintiff SANDRA BUCIO.

24

25

17. Plaintiff SANDRA BUCIO is a citizen and national of Mexico. She is a

26 resident of the City of San Francisco, State of California. Plaintiff BUCIO is a

27 victim of an aggravated battery, false imprisonment and aggravated assault. She

28 cooperated with law enforcement and is statutorily eligible for the issuance of a

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1 U visa. On or about February 1, 2004 Plaintiff BUCIO presented Defendants a

2 written request that they issue her and her children, Plaintiffs SERGIO and 3
ANDRES BUCIO PEREZ, lawful status in accordance with the Crime Victims Act.
4
5 Defendants have refused to grant or deny Plaintiff BUCIO’S and Plaintiffs SERGIO

6 and ANDRES BUCIO PEREZ U visa status.

7

18. Plaintiff XIOMARA CASTRO is a citizen and national of El Salvador. She

8
is a resident of the City of San Francisco, State of California. Plaintiff XIOMARA
9

10 CASTRO is a victim of criminal assault and domestic violence. She cooperated

11 with law enforcement and is statutorily eligible for the issuance of a U visa. On

12 or about July 30, 2004 Plaintiff XIOMARA CASTRO presented Defendants a written
13
request for benefits under the Crime Victims Act. Defendants have refused to
14 15 grant or deny Plaintiff CASTRO a U visa.

16

19. Plaintiff RAMONA QUINTERO is a citizen and national of Mexico. She is

17 a resident of the City of San Francisco, State of California. Plaintiff QUINTERO is a
18
victim of criminal threats, Restraining Order violation, and battery (domestic
19 20 violence). She cooperated with law enforcement and is statutorily eligible for the

21 issuance of a U visa. On or about October 6, 2004 Plaintiff QUINTERO presented

22 Defendants a written request for benefits under the Crime Victims Act.

23
Defendants have refused to grant or deny Plaintiff QUINTERO a U visa.

24

25

20. Plaintiff LUIS R. NUNEZ HERNANDEZ is a citizen and national of

26 México. He is a resident of the City of San Francisco, State of California. Plaintiff

27 NUNEZ HERNANDEZ is a victim of aggravated assault with a gun and attempted

28 murder. He cooperated with law enforcement and is statutorily eligible for the

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1 issuance of a U visa. On or about September 17, 2004, Plaintiff NUNEZ

2 HERNANDEZ presented Defendants a written request for benefits under the 3
Crime Victims Act. Defendants have refused to grant or deny plaintiff NUNEZ
4
5 HERNANDEZ a U visa.

6

21. Plaintiff RICARDO NUNEZ HERNANDEZ is a citizen and national of

7 México. He is a resident of the City of San Francisco, State of California. Plaintiff 8
RICARDO NUNEZ HERNANDEZ is a victim of aggravated assault with a gun and
9 10 attempted murder. He cooperated with law enforcement and is statutorily

11 eligible for the issuance of a U visa. On or about September 17, 2004, Plaintiff

12 NUNEZ HERNANDEZ presented Defendants a written request for benefits under
13
the Crime Victims Act. Defendants have refused to grant or deny plaintiff
14 15 NUNEZ HERNANDEZ a U visa.

16

22. Plaintiff ELIZABETH LOPEZ GOMEZ is a citizen and national of México.

17 She is a resident of the City of San Mateo, State of California. Plaintiff ELIZABETH
18
LOPEZ GOMEZ is a victim of the infliction of corporal injury on a spouse, criminal
19 20 assault, and criminal threats. She cooperated with law enforcement and is

21 statutorily eligible for the issuance of a U visa. On or about May 21, 2004,

22 Plaintiff LOPEZ GOMEZ presented Defendants with a written request for benefits

23
in accordance with the Crime Victims Act. Defendants have refused to grant or
24 25 deny Plaintiff LOPEZ GOMEZ a U visa.

26

23. Plaintiff MARIA ESTERVINA PEREZ is a citizen and national of El

27 Salvador. She is a resident of the City of Menlo Park, State of California. Plaintiff

28 ESTERVINA PEREZ is a victim of the infliction of corporal injury and criminal

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1 assault. She cooperated with law enforcement and is statutorily eligible for the

2 issuance of a U visa. On or about July 28, 2004, Plaintiff ESTERVINA PEREZ 3
presented Defendants with a written request for benefits in accordance with the
4
5 Crime Victims Act. Defendants have refused to grant or deny Plaintiff

6 ESTERVINA PEREZ a U visa.

7

24. Plaintiff GIOVANA SAAVEDRA is a citizen and national of Peru. She is a

8
resident of the City of Newark, State of California. She is a victim of domestic
9

10 violence and is statutorily eligible for the issuance of a U visa. On or about

11 November 21, 2006, she petitioned the USCIS to issue her benefits under the

12 Crime Victims Act. Plaintiff SAAVEDRA submitted her application without a U
13
certification after making several good faith efforts to obtain one from the
14 15 Newark Police Department and the Alameda County District Attorney’s office,

16 but they refused despite the fact that the abuser in her case was prosecuted and

17 pled guilty. Defendants have refused to grant or deny Plaintiff SAAVEDRA a U

18
visa.
19

20

25. Plaintiff ELEUTERIO RODRIGUEZ RUIZ is a citizen and national of

21 Mexico. He is a resident of the City of Stockton, State of California. He is a victim

22 of an aggravated assault perpetrated by a United States citizen vigilante armed
23
with a deadly weapon, cooperated with law enforcement that investigated the
24 25 crime, and is statutorily eligible for the issuance of a U visa. On or about June 30,
26 2005, he petitioned the USCIS to issue him a U visa. Defendants have refused to

27 grant or deny Plaintiff RODRIGUEZ RUIZ’s request for a U visa. 28

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1

26. Plaintiff FELIPE SANCHEZ MARTINEZ is a citizen and national of

2 Mexico. He is a resident of the City of Phoenix, State of Arizona. He is a victim of 3
an aggravated assault perpetrated by a United States citizen vigilante armed
4
5 with a deadly weapon, cooperated with law enforcement that investigated the

6 crime, and is statutorily eligible for the issuance of a U visa. On or about June 30,

7 2005, he petitioned the USCIS to issue him a U visa. Defendants have refused to

8
grant or deny Plaintiff SANCHEZ MARTINEZ’s request for a U visa.
9

10

27. Plaintiff FRANCISCA RAMIREZ ALVAREZ is a citizen and national of

11 Mexico. She is a resident of the City of Louisville, State of Kentucky. She is a

12 victim of domestic violence and is statutorily eligible for the issuance of a U visa.
13
On or about March 19, 2002, she petitioned the Louisville, KY Immigration and
14 15 Naturalization Service office for benefits under the Crime Victims Act. On

16 January 2, 2003, she petitioned the USCIS for benefits under the Crime Victims

17 Act. Defendants have refused to grant or deny Plaintiff FRANCISCA RAMIREZ

18
ALVAREZ a U visa.
19

20

28. Plaintiff CONSTANTINA CAMPOS is a citizen and national of Mexico.

21 She is a resident of the City of New York, State of New York. She is a victim of

22 domestic violence, cooperated with law enforcement, and is statutorily eligible
23
for the issuance of a U visa. On or about July 12, 2002, she petitioned the USCIS
24 25 for benefits under the Crime Victims Act. Defendants have refused to grant or
26 deny Plaintiff CAMPOS a U visa.

27

29. Plaintiff IRMA MORENO SANVICENTE is a citizen and national of

28 Mexico. She is a resident of the City of New York, State of New York. She is a

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1 victim of criminal domestic violence, cooperated with law enforcement, and is

2 statutorily eligible for the issuance of a U visa. She first petitioned the USCIS for 3
U visa benefits in late 2005, but the USCIS refused to adjudicate her petition on
4
5 the basis that her law enforcement certification had expired. On or about

6 February 3, 2006, Plaintiff MORENO SANVICENTE petitioned the USCIS again for

7 benefits under the Crime Victims Act. In January 2007, Plaintiff MORENO 8
SANVICENTE petitioned the USCIS for a renewal of deferred action status and for
9 10 a U visa. Absent regulations allowing for the issuance of U visas, Plaintiff

11 MORENO SANVICENTE’s 17-year-old daughter in Meixco is in danger of aging out

12 of eligibility as a derivative to her mother’s U visa application. Defendants have

13
refused to grant or deny Plaintiff IRMA MORENO SANVICENTE a U visa.
14

15

30. Plaintiff ROSA GALAVIZ is a citizen and national of Mexico. She is a

16 resident of the State of Indiana. She is a victim of criminal domestic violence, has

17 cooperated with law enforcement, and is statutorily eligible for the issuance of a
18
U visa. On or about June 28, 2006, she petitioned the USCIS to issue her a U visa
19 20 in accordance with the Crime Victims Act. She has also petitioned on behalf of

21 her seven minor children who reside in Mexico and are eligible for U visas as

22 derivatives. The domestic violence perpetrated against Plaintiff GALAVIZ by her
23
abusive husband resulted in his deportation. Absent regulations allowing for the
24 25 issuance of U visas, Plaintiff ROSA GALAVIZ’s children are in danger of aging out
26 of eligibility as derivatives to her U visa application. Defendants have refused to

27 grant or deny Plaintiff ROSA GALAVIZ or her children U visas. 28

Complaint

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1

31. Plaintiff MARIA LUISA ARROYO TORRES is a citizen and national of

2 Mexico. She is a resident of the City of Mercedes, State of Texas. She is a victim of 3
assault and domestic violence and is statutorily eligible for the issuance of a U
4
5 visa. On or about July 10, 2006, she petitioned the USCIS for benefits under the

6 Crime Victims Act. Plaintiff TORRES submitted her application with a U

7 certification signed on August 5, 2005 by Assistant Criminal District Attorney of 8
the County of Hidalgo, over six months before the date on which she applied for
9 10 U visa benefits. Defendants rejected her request for a U visa because her U

11 certification was not signed within six months of her request for a U visa.

12

32. Plaintiff JUAN FRANCISCO ROCHA ROCHA is a citizen and national of

13
Mexico. He is a resident of the City of Alamo, State of Texas. He and his family
14

15 were the victims of a felonious assault and attempted murder, cooperated with

16 law enforcement, and are statutorily eligible for the issuance of a U visa. On or

17 about November 30, 2006, he petitioned the USCIS to issue him benefits under
18
the Crime Victims Act. At the same time, Plaintiff ROCHA ROCHA filed an I-765
19 20 application for employment authorization. Prior to November 2006, the USCIS

21 accepted concurrent filing of U visa or deferred action status and employment

22 authorization applications. On information and belief, in or about November
23
2006, without complying with the notice and comment provisions of the
24 25 Administrative Procedures Act, defendants changed their policy and now no
26 longer accept employment authorization applications along with applications for

27 U visas or deferred action status. Plaintiff ROCHA ROCHA was issued a denial of 28

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1 his application for employment authorization on or about January 17, 2007, and

2 his application for U visa benefits remains pending. 3
33. Plaintiff JORGE DOMINGUEZ RIVERA is a citizen and national of Mexico
4
5 temporarily residing in Tucson, Arizona. He is the victim of felonious assault

6 perpetrated by a U.S. Border Patrol agent on January 12, 2007, when that agent

7 tried to run Plaintiff DOMINGUEZ RIVERA over with his vehicle. Plaintiff 8
DOMINGUEZ RIVERA has cooperated with law enforcement agents investigating
9 10 the incident. Plaintiff DOMINGUEZ RIVERA has applied for a U visa and requested

11 that Defendants issue a U certification since Defendants’ agents are investigating

12 the alleged felonious assault. In February 2007, Defendants threatened Plaintiff
13
DOMINGUEZ RIVERA with execution of an order of expedited removal before his
14 15 application for a U visa is adjudicated. Defendants have refused and failed to

16 issue regulations and to adjudicate Plaintiff JORGE DOMINGUEZ RIVERA’s

17 application for a U visa.
18
34. Defendant Michael CHERTOFF is the Secretary of the United States
19 20 Department of Homeland Security. Defendant CHERTOFF is charged with the

21 implementation of the Immigration and Nationality Act, 8 U.S.C. §§ 1101 et seq.,

22 and with the administration of the United States Citizenship and Immigration

23
Services. He is sued in his official capacity.

24

25

35. Defendant UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES

26 (“USCIS”) is a bureau of the U.S. Department of Homeland Security. USCIS is

27 charged with the implementation of the Immigration and Nationality Act, 8

28 U.S.C. §§ 1101 et seq., including the U visa provisions, as well as enactments of

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1 Congress requiring the promulgation of implementing regulations pursuant to

2 which plaintiffs and those similarly situated may have their eligibility for U visas

3
lawfully determined.
4

5

IV

6

CLASS ALLEGATIONS

7

36. Plaintiffs bring this action on behalf of themselves and all other

8
persons similarly situated pursuant to Fed.R.Civ.Proc. Rule 23(a) and 23(b)(2).
9

10 Plaintiffs provisionally propose this action be certified on behalf of the following

11 class:

12

All persons who are prima facie eligible for a U visa and who have applied

13
for or would apply for issuance of a U visa but for defendants’ failure to
14

15

issue U visas or promulgate regulations implementing § 1512 of the

16

Victims of Trafficking and Violence Protection Act of 2000.

17

37. Members of the proposed class likely number in the thousands and are

18
so numerous that joinder of all members is impracticable. The claims of the
19
20 proposed class representatives and those of the proposed class members raise

21 common questions of law and fact concerning, inter alia, whether defendants

22 may lawfully refuse to provide a path by which individuals who are prima facie
23
eligible for U visas may apply for the immigration benefit Congress has made
24 25 available to them. These questions are common to the named plaintiffs and to the
26 members of the proposed class because Defendants have acted and will continue

27 to act on grounds generally applicable to both the named plaintiffs and proposed

28 class members. The individual named plaintiffs’ claims are typical of the class

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1 claims. The named plaintiffs will adequately represent all members of the

2 proposed class. 3
38. The prosecution of separate actions by individual members of the class
4
5 would create a risk of inconsistent or varying adjudications establishing

6 incompatible standards of conduct for defendants. The issuance of regulations,

7 forms, standards and procedures is a national function, not a function performed 8
differently in each individual case or in each USCIS district or region.
9 10 Prosecution of separate actions would create the risk that individual class

11 members will secure court orders that would as a practical matter be dispositive

12 of the claims of other class members not named parties to this litigation, thereby
13
substantially impeding the ability of unrepresented class members to protect
14 15 their interests.

16

39. Defendants, their agents, employees, and predecessors and successors

17 in office have acted or refused to act, and will continue to act or refuse to act, on
18
grounds generally applicable to the class, thereby making appropriate injunctive
19 20 relief or corresponding declaratory relief with respect to the class as a whole.

21 Plaintiffs will vigorously represent the interests of unnamed class members. All

22 members of the proposed class will benefit by the action brought by the
23
plaintiffs. The interests of the plaintiffs and those of the proposed class members
24 25 are identical. Plaintiffs are represented by counsel associated with non-profit
26 public interest law firms and reputable private firms acting pro bono publico and

27 include attorneys highly experienced in federal class action litigation involving

28 the rights of foreign nationals, children, and refugees within the United States.

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1

V

2

FACTUAL ALLEGATIONS

3
40. Although the Crime Victims Act set no specific date by which
4

5 defendants were required to promulgate regulations implementing the U visa

6 program, several years after its enactment, in the Violence Against Women and

7 Department of Justice Reauthorization Act of 2005, Pub. L. 109-162, 119 Stat. 2960 8
(2006) (“VAWA Reauthorization Act”), Congress directed defendants to
9 10 “promulgate regulations to implement” the U visa program “[n]o later than 180

11 days after the date of enactment of this Act… “ Id. at § 828. On January 5, 2006,

12 the VAWA Reauthorization Act was signed into law, and defendants were
13
thereafter under an unambiguous legal duty to promulgate U visa regulations no
14 15 later than July 4, 2006.

16

41. Defendants have nevertheless persisted in their failure to afford crime

17 victims a means to apply for and obtain U visas. Instead, defendants have
18
granted some U visa-eligible persons a quasi-legal, non-statutory temporary
19 20 status known as “deferred action.” Deferred action is no more than an exercise of

21 prosecutorial discretion not to seek a crime victim’s immediate deportation or

22 removal. Deferred action confers no cognizable legal status and simply defers an
23
individual’s deportation from the United States. In contrast, recipients of actual
24 25 U visas are entitled, among other benefits, to be employed, to travel abroad, to be
26 referred for social and related services, and to accrue time toward eligibility for

27 lawful permanent residence. 8 U.S.C. § 1255(m) (U visa holders eligible for

28 permanent residence after three years).

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1

42. Pursuant to 8 U.S.C. § 1101(U)(ii), the spouses, children, and, if the

2 applicant is under 21, the unmarried siblings, of persons who are issued U visas 3
are entitled to “derivative” U visas if they are “accompanying or following to
4
5 join” a U visa holder. Id. 8 U.S.C. § 1101(b)(1) defines the term “child” as “an

6 unmarried person under twenty-one years of age …” Persons eligible for

7 derivative U visas as “children” accordingly become ineligible for such visas 8
upon turning 21 years of age. Because defendants have failed to issue U visas,
9 10 persons eligible for derivative U visas have been denied and will be denied

11 benefits Congress intended to extend to them because the defendants have

12 permitted them to “age out” of eligibility.
13
43. Shortly after enactment of the Crime Victims Act, defendants adopted
14 15 a policy and practice permitting persons who sought U visas or deferred action

16 on the basis of asserted eligibility for U visas to apply for employment

17 authorization concurrently with their requests for deferred action. This policy
18
and practice allowed persons whom defendants granted deferred action status to
19 20 work lawfully in the United States after a maximum delay of 90 days. 8 C.F.R. §

21 274a.13(d). The policy and practice was consistent with defendants’ treatment of

22 applicants for other immigration benefits who are permitted to apply for

23
employment authorization concurrently with their applications for lawful status.
24 25 See, e.g. 8 C.F.R. § 274a.13(a)(2).

26

44. However on or about November 2, 2006, defendants discontinued the

27 afore-alleged policy and practice and adopted a new policy to reject applications

28 for employment authorization from persons seeking U visas or deferred action

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1 based on asserted eligibility for a U visa until after deferred action is actually

2 granted. Defendants take an average of several months to decide a request for 3
deferred action based on asserted eligibility for a U visa. Defendants’ new policy
4
5 and practice accordingly delay for an additional several months the time when

6 persons statutorily eligible for U visas are permitted to work lawfully in the

7 United States. Said policy and practice encode a substantive value judgment and 8
substantially alter the rights or interests of regulated parties, but were adopted
9 10 entirely informally and without compliance with any of the rulemaking

11 provisions of the Administrative Procedure Act, 5 U.S.C. § 553.

12

45. 8 U.S.C. § 1184(p)(3)(A) requires defendants to “provide aliens

13
[holding U visas] with referrals to nongovernmental organizations to advise the
14

15 aliens regarding their options while in the United States and the resources

16 available to them…” As a matter of policy and practice, defendants fail to

17 provide persons statutorily eligible for U visas with referrals as required by 8

18
U.S.C. § 1184(p)(3)(A).
19

20

46. 8 U.S.C. § 1184(p)(1) requires that “[t]he petition filed by an alien [for a

21 U visa] shall contain a certification from a Federal, state or local law enforcement

22 official, prosecutor, judge, or other Federal State or local authority investigation
23
criminal activity … This certification shall state that the alien ‘has been helpful, is
24 25 being helpful, or is likely to be helpful’ in the investigation or prosecution of
26 criminal activity…” Nothing in § 1184(p) or elsewhere requires that the specified

27 certification be executed within any specific time proximate to the filing of an

28 application for a U visa.

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1

47. However, defendants, as a matter of policy and practice, deny deferred

2 action to individuals who seek such relief based on asserted eligibility for U visas 3
whenever they do not furnish a § 1184(p)(1) certification executed within six
4
5 months of their requests for deferred action. Said policy and practice graft onto §

6 1184(p)(1) an ultra vires and unlawful eligibility requirement.

7

48. Plaintiff SANDRA BUCIO is a citizen and national of Mexico. She is a

8
resident of the City of San Francisco, State of California. Plaintiff BUCIO is a
9

10 victim of an aggravated assault and battery and false imprisonment. Section

11 1512 of the Crime Victims Act of 2000 declares the victims of such crimes eligible

12 for U Visas. Plaintiff BUCIO reported these crimes to the Hidalgo Police Station
13
in New Mexico and the perpetrator was arrested and was charged with several
14 15 crimes, including aggravated battery, false imprisonment, and child abuse. On

16 December 20, 2002 a Deputy District Attorney of Grant County in New Mexico

17 certified that Plaintiff BUCIO had been helpful in the investigation and
18
prosecution of the crime. On October 3, 2003, a new certification was obtained
19 20 from the same District Attorney’s office. The law enforcement certification

21 further states that the criminal investigation and prosecution would be harmed

22 without the assistance of Plaintiff SANDRA BUCIO’s children, Plaintiffs SERGIO
23
BUCIO PEREZ AND ANDRES BUCIO PEREZ. On or about February 1, 2004 Plaintiff
24 25 SANDRA BUCIO presented Defendants a written request for benefits for her and
26 her children under the Crime Victims Act. Defendants have refused and failed to

27 issue U visas to Plaintiff SANDRA BUCIO or SERGIO or ANDRES BUCIO PEREZ. On

28 information and belief, Plaintiff BUCIO alleges that Defendants have not and will

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1 not adjudicate her or her children’s applications for U visas until after they

2 promulgate implementing regulations, something Defendants have failed to do
3
for six years.
4

5

49. Plaintiff XIOMARA CASTRO is a victim of criminal assault and domestic

6 violence. On or about January 26, 2002, Plaintiff XIOMARA CASTRO was

7 physically attacked by her husband and suffered extreme physical abuse as a 8
result. Section 1512 of the Crime Victims Act of 2000 declares the victims of such
9 10 crimes eligible for U Visas. Plaintiff XIOMARA CASTRO reported these crimes to

11 the Rosenberg Police Department in Rosenburg, TX and the perpetrator was

12 found guilty as charged. Additionally, on March 30, 2004, a Police Officer from
13
the Rosenberg Police Department certified that XIOMARA CASTRO was being
14 15 helpful in the investigation and prosecution of the crime. On or about July 30,

16 2004, Plaintiff XIOMARA CASTRO presented Defendants a written request for

17 benefits under the Crime Victims Act. Defendants have refused and failed to
18
issue regulations and or to issue Plaintiff XIOMARA CASTRO a U visa. On
19 20 information and belief, Plaintiff XIOMARA CASTRO alleges that Defendants have

21 not and will not adjudicate an application for a U visa until after they

22 promulgate implementing regulations, something Defendants have failed to do
23
for six years. Defendants’ failure to issue implementing regulations deprives
24 25 Plaintiff XIOMARA CASTRO, and those similarly situated of procedures,
26 standards, and forms by which they may obtain a U visa. Defendants’ unlawful

27 failure and refusal to adjudicate Plaintiff XIOMARA CASTRO’s application for a U

28 visa blocks their ability to travel abroad and accrue three years temporary

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1 residence as required by the Victims Protection Act before they may obtain
2 permanent residence. 3
50. Plaintiff RAMONA QUINTERO is a victim of criminal threats, Restraining
4 5 Order violation, and battery (Domestic Violence). On or about July 15, 2003
6 RAMONA QUINTERO was physically attacked by her former husband and
7 suffered extreme physical abuse. Plaintiff RAMONA QUINTERO reported these 8
crimes to the San Francisco Police Department and on August 26, 2004, an
9 10 Assistant District Attorney of the San Francisco District Attorney’s Office
11 certified that RAMONA QUINTERO has been helpful in the prosecution of the
12 crime. On or about October 6, 2004, Plaintiff RAMONA QUINTERO presented 13
Defendants a written request for benefits under the Crime Victims Act.
14 15 Defendants have refused and failed to issue regulations or to grant Plaintiff
16 RAMONA QUINTERO a U visa. On information and belief, Plaintiff RAMONA
17 QUINTERO alleges that Defendants have not and will not adjudicate an 18
application for a U visa until after they promulgate implementing regulations,
19 20 something Defendants have failed to do for six years. Defendants’ failure to issue
21 implementing regulations deprives Plaintiff RAMONA QUINTERO, and those
22 similarly situated of procedures, standards, and forms by which they may obtain 23
a U visa. Defendants’ unlawful failure and refusal to adjudicate Plaintiff
24 25 RAMONA QUINTERO’s application for a U visa blocks their ability to travel abroad 26 and accrue three years temporary residence as required by the Victims Protection
27 Act before they may obtain permanent residence.
28

Complaint

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1

51. Plaintiff LUIS R. NUNEZ HERNANDEZ is a victim of aggravated assault

2 with a gun and attempted murder. Section 1512 of the Crime Victims Act of 2000 3
declares the victims of such crimes eligible for U Visas. Plaintiff HERNANDEZ
4
5 reported these crimes to the San Francisco Police Station in California and an

6 Assistant District Attorney has certified that Plaintiff HERNANDEZ has been

7 helpful in the investigation of the crime. On or about September 17, 2004, 8
Plaintiff HERNANDEZ presented Defendants a written request for a U visa.
9 10 Defendants have refused and failed to issue U visa regulations or to grant

11 Plaintiff HERNANDEZ a U visa. On information and belief, Plaintiff HERNANDEZ

12 alleges that Defendants have not and will not adjudicate an application for a U
13
visa until after they promulgate implementing regulations, something
14 15 Defendants have failed to do for six years.

16

52. Plaintiff RICARDO NUNEZ HERNANDEZ is a victim of aggravated

17 assault with a gun and attempted murder. On or about March 21, 2003, Plaintiff
18
NUNEZ HERNANDEZ was shot in the chest. Section 1512 of the Crime Victims Act
19 20 of 2000 declares the victims of such crimes eligible for U Visas. Plaintiff NUNEZ

21 HERNANDEZ reported these crimes to the San Francisco Police Department in

22 California and an Assistant District Attorney has certified that NUNEZ
23
HERNANDEZ has been helpful in the investigation of the crime. On or about
24 25 September 17, 2004, Plaintiff NUNEZ HERNANDEZ presented Defendants with a
26 written request for relief under the Crime Victims Act. Defendants have refused

27 and failed to issue U visa regulations or to grant Plaintiff NUNEZ HERNANDEZ a

28 U visa. On information and belief, Plaintiff RICARDO NUNEZ HERNANDEZ alleges

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1 that Defendants have not and will not adjudicate an application for a U visa until

2 after they promulgate implementing regulations, something Defendants have
3
failed to do for six years.
4

5

53. Plaintiff ELIZABETH LOPEZ GOMEZ is a victim of felonious assault,

6 infliction of corporal injury, and criminal threats. Section 1512 of the Crime

7 Victims Act of 2000 declares the victims of such crimes eligible for U visas. 8
Plaintiff LOPEZ GOMEZ reported these crimes to the Menlo Park Police
9 10 Department, and the perpetrator was arrested and prosecuted as a result. On or

11 about April 30, 2004, a San Mateo County deputy district attorney certified that

12 plaintiff LOPEZ GOMEZ possesses information concerning this criminal activity
13
and was being helpful in the prosecution of the perpetrator. On or about May 21,
14 15 2004 plaintiff LOPEZ GOMEZ presented defendants with a written request for

16 benefits under the Crime Victims Act. Defendants have refused and failed to

17 issue regulations or to grant plaintiff LOPEZ GOMEZ a U visa. On information and
18
belief, defendants have not and will not adjudicate an application for a U visa
19 20 until after they promulgate implementing regulations, something they have

21 failed to do for more than six years.

22

54. Plaintiff MARIA ESTERVINA PEREZis a victim of the infliction of corporal

23
injury and criminal assault. Section 1512 of the Crime Victims Act of 2000
24 25 declares the victims of such crimes eligible for U visas. Plaintiff ESTERVINA PEREZ

26 reported these crimes to the Menlo Park Police Department, and the perpetrator

27 was arrested and prosecuted as a result. On or about May 4, 2004, a San Mateo

28 County deputy district attorney certified that plaintiff ESTERVINA PEREZ

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1 possesses information concerning this criminal activity and was being helpful to

2 the prosecution of the perpetrator. On or about July 28, 2004 Plaintiff ESTERVINA 3
PEREZ presented defendants with a written request for benefits under the Crime
4
5 Victims Act. Defendants have refused and failed to issue regulations or to grant

6 plaintiff ESTERVINA PEREZ a U visa. On information and belief, Plaintiff

7 ESTERVINA PEREZ alleges that Defendants have not and will not adjudicate an 8
application for a U visa until after they promulgate implementing regulations,
9 10 something they have failed to do for more than six years.

11

55. Plaintiff GIOVANA SAAVEDRA ANGULO is a victim of criminal domestic

12 violence perpetrated by her husband in 2005. In or around July 2005, Plaintiff
13
SAAVEDRA ANGULO called the Newark police and reported the crime. Section
14 15 1512 of the Crime Victims Act of 2000 declares the victims of such crimes eligible

16 for U visas. Plaintiff SAAVEDRA ANGULO gave detailed statements to law

17 enforcement officials regarding this crime, and the perpetrator was arrested for
18
and charged with criminal domestic violence. The perpetrator was convicted.
19 20 Despite Plaintiff SAAVEDRA ANGULO‘s cooperation, the documented domestic

21 violence, and the guilty plea in this case, both the Newark Police Department

22 that arrested the perpetrator, and the Alameda County District Attorney’s office
23
that prosecuted the perpetrator, declined as a matter of policy to sign a U
24 25 certification. On or about November 21, 2006, Plaintiff SAAVEDRA ANGULO
26 presented defendants with a written request for benefits under the Crime

27 Victims Act. On information and belief, Plaintiff SAAVEDRA ANGULO alleges that

28 defendants have not and will not adjudicate an application for a U visa until and

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1 unless defendants first issue implementing regulations, including regulations

2 addressing the circumstance when a crime victim is unable to secure a U
3
certification from a local law enforcement agency.
4

5

56. Plaintiff ELEUTERIO RODRIGUEZ RUIZ is a victim of felonious

6 aggravated assault, false imprisonment, and unlawful criminal restraint. On or

7 about April 10, 2005, he was falsely imprisoned at gunpoint and otherwise 8
victimized in an act of vigilante violence along the Mexico-United States border
9 10 in the State of Arizona; he suffered extreme mental abuse as a result. Section 1512

11 of the Crime Victims Act of 2000 declares the victims of such crimes eligible for U

12 visas. Plaintiff RODRIGUEZ RUIZ gave detailed statements to law enforcement
13
officials regarding this crime, and the perpetrator was arrested for felonious
14 15 aggravated assault with a deadly weapon. A law enforcement officer has

16 certified that plaintiff RODRIGUEZ RUIZ possesses information concerning the

17 criminal activity, has been helpful to local law enforcement in its investigation,
18
and remains willing to cooperate with any further investigation into the crime.
19 20 On or about June 30, 2005, Plaintiff RODRIGUEZ RUIZ presented defendants with a

21 written request for a U visa pursuant to the Crime Victims Act. However

22 defendants have failed to issue regulations implementing the U visa provisions
23
of the Crime Victims Act, and have failed to adjudicate Plaintiff RODRIGUEZ
24 25 RUIZ’s application for a U visa. On information and belief, Plaintiff RODRIGUEZ
26 RUIZ alleges that defendants have not and will not adjudicate his application for

27 a U visa until and unless defendants first issue implementing regulations. 28

Complaint

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1

57. Plaintiff FELIPE SANCHEZ MARTINEZ is a victim of felonious aggravated

2 assault, false imprisonment, and unlawful criminal restraint. On or about April 3
10, 2005, he was falsely imprisoned at gunpoint and otherwise victimized in an
4
5 act of vigilante violence along the Mexico-United States border in the State of

6 Arizona; he suffered extreme mental abuse as a result. Section 1512 of the Crime

7 Victims Act of 2000 declares the victims of such crimes eligible for U visas. 8
Plaintiff SANCHEZ MARTINEZ gave detailed statements to law enforcement
9 10 officials regarding this crime, and the perpetrator was arrested for felonious

11 aggravated assault with a deadly weapon. A law enforcement officer has

12 certified that plaintiff SANCHEZ MARTINEZ possesses information concerning the
13
criminal activity, has been helpful to local law enforcement in its investigation,
14 15 and remains willing to cooperate with any further investigation into the crime.

16 On or about June 30, 2005, plaintiff SANCHEZ MARTINEZ presented defendants

17 with a written request for a U visa pursuant to the Crime Victims Act. However
18
defendants have failed to issue regulations implementing the U visa provisions
19 20 of the Crime Victims Act, and have failed to adjudicate plaintiff SANCHEZ

21 MARTINEZ’s application for a U visa. On information and belief, plaintiff

22 SANCHEZ MARTINEZ alleges that defendants have not and will not adjudicate his

23
application for a U visa until and unless defendants first issue implementing
24 25 regulations.

26

58. Plaintiff FRANCISCA RAMIREZ ALVAREZ is a victim of criminal domestic

27 violence and is statutorily eligible for the issuance of a U visa. Plaintiff RAMIREZ

28 ALVAREZ was threatened with guns and knives and was beaten and sexually

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1 assaulted. Plaintiff RAMIREZ ALVAREZ has been issued a U visa certification,

2 signed by a law enforcement official on March 18, 2002, stating that Plaintiff 3
RAMIREZ ALVAREZ has been helpful to local law enforcement in its criminal
4
5 investigation. On or about June March 19, 2002, she petitioned the local

6 Louisville, KY Immigration and Naturalization Service (INS) office for a U visa

7 or deferred action status. Having been granted no benefits, on or about January 8
2, 2003, Plaintiff RAMIREZ ALVAREZ petitioned the Vermont Service Center of
9 10 INS for relief under the Crime Victims Act. She was finally granted deferred

11 action status on or about October 17, 2003. On information and belief, Plaintiff

12 RAMIREZ ALVAREZ alleges that Defendants have not and will not adjudicate her a

13
U visa until and unless Defendants first issue implementing regulations.
14

15

59. Plaintiff CONSTANTINA CAMPOS was a victim of domestic violence in

16 the City of New York. The perpetrator was arrested and prosecuted in Kings

17 County Criminal Court and Plaintiff CAMPOS received a Criminal Court Order of 18
Protection against him. Section 1512 of the Crime Victims Act declares the
19 20 victims of such crimes eligible for U visas. Plaintiff CAMPOS reported these

21 crimes to the New York City Police Department and a law enforcement official

22 certified that Plaintiff CAMPOS has been helpful in the prosecution of the crime.
23
On or about June 21, 2002, and several times thereafter, Plaintiff CAMPOS has
24 25 presented Defendants with written request for relief under the Crime Victims

26 Act. Defendants have refused and failed to issue regulations or to grant Plaintiff

27 CAMPOS a U visa. On information and belief, Plaintiff CAMPOS alleges that

28
Defendants have not and will not adjudicate an application for a U visa until

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1 after they promulgate implementing regulations, something Defendants have
2 failed to do for six years. 3
60. Plaintiff IRMA MORENO SANVICENTE is a victim of domestic violence
4 5 perpetrated by her husband. Plaintiff MORENO SANVICENTE has suffered
6 substantial physical and mental harm as a result. In or around March of 2005,
7 Plaintiff MORENO SANVICENTE’s husband was arrested following an incident of 8
domestic violence. Her husband was prosecuted in New York County Crimnal
9 10 Court. Plaintiff MORENO SANVICENTE cooperated with the police and District
11 Attorney throughout the investigation and prosecution of the crime. Plaintiff
12 MORENO SANVICENTE obtained a certification from the New York County 13
District Attorney’s Office describing her cooperation. In or around late 2005,
14 15 Plaintiff MORENO SANVICENTE presented Defendants with a written request for
16 relief under the Crime Victims Act. On November 15, 2005, Defendants refused
17 to grant relief on the basis that her law enforcement certification was not signed 18
within six months of her request. Plaintiff MORENO SANVICENTE sought and
19 20 obtained an updated U certification. On or about February 3, 2006, Plaintiff
21 MORENO SANVICENTE presented Defendants with a second request for benefits
22 under the Crime Victims Act. She was eventually granted deferred action status 23
however she has not been granted U visa status and her 17-year old daughter
24 25 who remains in México is in danger of “aging out” of U visa derivative 26 eligibility. Plaintiff MORENO SANVICENTE is unable to reunite with her daughter
27 because of defendants’ failure to issue U visas or derivative U visas.
28

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1

61. Plaintiff ROSA GALAVIZ is a victim of criminal domestic violence

2 perpetrated by her husband. Plaintiff GALAVIZ has suffered substantial physical 3
and mental abuse as a result of this criminal abuse. On or about March 20, 2006,
4
5 her husband pled guilty to charges of domestic battery against Plaintiff GALAVIZ

6 and was sentenced to a period of incarceration. In or about May 2006 Plaintiff

7 GALAVIZ’s husband was deported to México and now resides with Plaintiff 8
GALAVIZ’s seven minor children, the oldest of whom is 14 years of age. In 2006,
9 10 a Deputy Prosecuting Attorney from Marion County, Indiana certified that

11 Plaintiff GALAVIZ had been helpful in the criminal investigation and prosecution.

12 On or about June 28, 2006, Plaintiff GALAVIZ petitioned the USCIS for benefits
13
under the Crime Victim Act. On or about February 13, 2007, Plaintiff GALAVIZ
14 15 also petitioned the USCIS on behalf of her seven minor children in México,

16 seeking to reunite with them in the United States and remove them from the

17 danger of their abusive father. Defendants have refused and failed to issue
18
regulations or to grant Plaintiff ROSA GALAVIZ’s or her children U visas. On
19 20 information and belief, Plaintiff GALAVIZ alleges that Defendants have not and

21 will not adjudicate an application for a U visa until after they promulgate

22 implementing regulations, something Defendants have failed to do for six years.
23
Defendants’ failure and refusal to grant Plaintiff ROSA GALAVIZ a U visa blocks
24 25 her ability to travel abroad and to seek reunification with her dependent children
26 in a timely manner that protects their safety and well-being.

27

62. Plaintiff MARIA LUISA ARROYO TORRES is a victim of criminal assault

28 and domestic violence perpetrated by her ex-husband. She reported these crimes

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1 to the Hidalgo County Sheriff’s Department on or about September 11, 2004 and

2 August 2, 2005. On or about July 10, 2006, she petitioned the USCIS for benefits 3
under the Crime Victims Act. Plaintiff ARROYO TORRES submitted her application
4
5 with a U certification signed on or about August 5, 2005 by Assistant Criminal

6 District Attorney of the County of Hidalgo, stating that Plaintiff ARROYO TORRES

7 possesses information concerning the criminal activity, has been helpful to local 8
law enforcement in its investigation, and remains willing to cooperate with any
9 10 further investigation into the crime. That certification was issued more than six

11 months before Plaintiff ARROYO TORRES applied for a U visa or deferred action

12 status. In or about October 2006 defendants denied Plaintiff ARROYO TORRES
13
relief under the Crime Victims Act because her U certification was signed more
14 15 than six months before it was submitted to the USCIS. On or about December 1,

16 2006, Plaintiff TORRES received a denial of her employment authorization

17 application.
18 63. Plaintiff JUAN FRANCISCO ROCHA ROCHA is a victim of felonious
19 20 assault and attempted murder perpetrated by unknown assailants. Plaintiff

21 ROCHA ROCHA suffered substantial physical and mental abuse as a result, as did

22 his wife and two young sons. A law enforcement officer has certified that
23
Plaintiff ROCHA ROCHA and his family have been helpful to law enforcement in
24 25 the investigation of the crime. On or about November 30, 2006, Plaintiff ROCHA

26 ROCHA and each of his family members submitted applications for rlelief under

27 the Crime Victims Act, concurrently with applications for employment

28
authorization. On or about January 17, 2007, Plaintiff ROCHA ROCHA’s

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1 application for employment authorization was denied, on information an belief

2 based upon defendants’ new policy of not accepting employment authorization 3
applications until the defendants have granted an applicant deferred action
4
5 status. Defendants have refused and failed to issue regulations or to grant

6 Plaintiff ROCHA ROCHA a U visa. On information and belief, Plaintiff ROCHA

7 ROCHA alleges that Defendants have not and will not adjudicate an application 8
for a U visa until after they promulgate implementing regulations, something
9 10 Defendants have failed to do for six years.

11

64. Plaintiff JORGE DOMINGUEZ RIVERA is a victim of felonious assault

12 perpetrated by a U.S. Border Patrol agent on January 12, 2007, when that agent 13
tried to run Plaintiff DOMINGUEZ RIVERA over with his vehicle. That same day,
14
15 Plaintiff DOMINGUEZ RIVERA witnessed the same Border Patrol agent shoot and

16 kill his brother, Francisco Javier Dominguez Rivera. Plaintiff DOMINGUEZ

17 RIVERA has suffered substantial mental abuse as a result. On or about February 18
24, 2007, Plaintiff DOMINGUEZ RIVERA petitioned the USCIS for a U visa or
19 20 deferred action status. A U certification has not been issued by any

21 representative of the Government currently investigating the January 12, 2007

22 incident, though requests have been made in an effort to obtain such
23
certification. Defendants have threatened Plaintiff DOMINGUEZ RIVERA with
24 25 execution of an order of expedited removal before his application for a U visa is

26 adjudicated. Defendants have refused and failed to issue regulations and to

27 adjudicate Plaintiff DOMINGUEZ RIVERA’s application for a U visa. On

28
information and belief, Plaintiff DOMINGUEZ RIVERA alleges that Defendants

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1 have not and will not adjudicate his application for a U visa until after they

2 promulgate implementing regulations, something Defendants have failed to do

3
for six years.
4

5

VI

6

IRREPARABLE INJURY

7

65. Plaintiffs and those similarly situated are suffering and will continue to

8
suffer irreparable injury unless this Court orders relief as prayed for herein. Such
9

10 injury includes, inter alia, deprivation of due process and equal protection

11 through withholding of U visas. Damages cannot adequately address the injuries

12 suffered by plaintiffs and their proposed class members, including the inability
13
to legalize their immigration status in a manner made available by Congress and
14 15 the loss of ancillary benefits available to U visa holders.

16

VII

17

FIRST CAUSE OF ACTION

18
[Failure to promulgate regulations implementing U visa program]
19

20

66. Plaintiffs incorporate by this reference the allegations set out in ¶¶ 1-65

21 above as though fully re-alleged here.

22

67. Defendants’ failure to promulgate regulations implementing 8 U.S.C. §

23
1101(a)(15)(U) is agency action unlawfully withheld or unreasonably delayed, is
24 25 arbitrary, capricious, an abuse of discretion, otherwise not in accordance with

26 law, and violates (i) the Victims Protection Act of 2000, Pub. L. No. 106-386, Div.

27 A, 114 Stat. 1464 (2000), codified at, inter alia, 8 U.S.C. § 1101(a)(15)(U); (ii) the

28 Immigration and Nationality Act, 8 U.S.C. § 1103; (iii) the Violence Against

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1 Women and Department of Justice Reauthorization Act of 2005, Pub. L. 109-162,

2 119 Stat. 2960 (2006); (iv) the Administrative Procedure Act, §§ 5 U.S.C. §§ 551 et 3
seq.; (v) the due process clause and equal protection guarantee of the Fifth
4
5 Amendment to the United States Constitution; and (vi) Article II, §§ 1 and 3, of

6 the United States Constitution.

7

VIII

8
SECOND CAUSE OF ACTION
9

10

[Refusal to adjudicate U visa applications and issue U visas]

11

68. Plaintiffs incorporate by this reference the allegations set out in ¶¶ 1-65

12 above as though fully re-alleged here.
13
69. Defendants’ failure to adjudicate applications for U visas and refusal to
14 15 issue U visas is agency action unlawfully withheld or unreasonably delayed, and

16 is arbitrary, capricious, an abuse of discretion, otherwise not in accordance with

17 law, and violates (i) the Victims Protection Act of 2000, Pub. L. No. 106-386, Div.
18
A, 114 Stat. 1464 (2000), codified at, inter alia, 8 U.S.C. § 1101(a)(15)(U); (ii) the
19 20 Immigration and Nationality Act, 8 U.S.C. § 1103; (iii) the Violence Against

21 Women and Department of Justice Reauthorization Act of 2005, Pub. L. 109-162,

22 119 Stat. 2960 (2006); (iv) the Administrative Procedure Act, §§ 5 U.S.C. §§ 551 et
23
seq.; (v) the due process clause and equal protection guarantee of the Fifth
24 25 Amendment to the United States Constitution; and (vi) Article II, §§ 1 and 3, of
26 the United States Constitution.

27

28

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1

2

IX

3
THIRD CAUSE OF ACTION
4

5

[Refusal to adjudicate U visa applications Impact on the

6

Right to Work and Travel]

7

70. Plaintiffs incorporate by this reference the allegations set out in ¶¶ 1-65

8
above as though fully re-alleged here.
9

10

71. Defendants’ failure to adjudicate applications for U visas and refusal to

11 issue U visas also deny eligible immigrants employment authorization during

12 the pendency of their U status and the ability to travel abroad without having to
13
make separate applications which are often denied for each trip abroad and
14 15 violates (i) the Victims Protection Act of 2000, Pub. L. No. 106-386, Div. A, 114

16 Stat. 1464 (2000), codified at, inter alia, 8 U.S.C. § 1101(a)(15)(U); (ii) the

17 Immigration and Nationality Act, 8 U.S.C. § 1103; (iii) the Violence Against
18
Women and Department of Justice Reauthorization Act of 2005, Pub. L. 109-162,
19 20 119 Stat. 2960 (2006); (iv) the Administrative Procedure Act, §§ 5 U.S.C. §§ 551 et

21 seq.; (v) the due process clause and equal protection guarantee of the Fifth

22 Amendment to the United States Constitution; and (vi) Article II, §§ 1 and 3, of
23
the United States Constitution.
24

25

26

27

28

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1

X

2

FOURTH CAUSE OF ACTION

3
[Failure to adjudicate applications for or issue derivative U visas]
4

5

72. Plaintiffs incorporate by this reference the allegations set out in ¶¶ 1-65

6 above as though fully re-alleged here.

7

73. Defendants’ failure to adjudicate applications for derivative U visas

8
and to issue derivative U visas is agency action unlawfully withheld or
9

10 unreasonably delayed, and is arbitrary, capricious, an abuse of discretion,

11 otherwise not in accordance with law, and violates (i) the Victims Protection Act

12 of 2000, Pub. L. No. 106-386, Div. A, 114 Stat. 1464 (2000), codified at, inter alia, 8
13
U.S.C. § 1101(a)(15)(U); (ii) the Immigration and Nationality Act, 8 U.S.C. § 1103;
14 15 (iii) the Violence Against Women and Department of Justice Reauthorization Act

16 of 2005, Pub. L. 109-162, 119 Stat. 2960 (2006); (iv) the Administrative Procedure

17 Act, §§ 5 U.S.C. §§ 551 et seq.; (v) the due process clause and equal protection
18
guarantee of the Fifth Amendment to the United States Constitution; and (vi)
19 20 Article II, §§ 1 and 3, of the United States Constitution.

21

XI

22

FIFTH CAUSE OF ACTION

23
[Unlawful failure to publish employment authorization

24

25

rule for notice and comment]

26

74. Plaintiffs incorporate by this reference the allegations set out in ¶¶ 1-65

27 above as though fully re-alleged here. 28

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1

75. Defendants’ failure to publish for notice and comment its rule

2 forbidding plaintiffs and those similarly situated from applying for employment 3
authorization until after they receive deferred action status violates (i) the
4
5 Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.; and (ii) the due process

6 clause and equal protection guarantee of the Fifth Amendment to the United

7 States Constitution. 8 9 10

XII SIXTH CAUSE OF ACTION

11

[Failure to provide referrals to nongovernmental organizations]

12

76. Plaintiffs incorporate by this reference the allegations set out in ¶¶ 1-65

13
above as though fully re-alleged here.
14

15

77. Defendants’ failure to provide plaintiffs and their class members with

16 referrals to nongovernmental organizations is agency action unlawfully withheld

17 or unreasonably delayed, and is arbitrary, capricious, an abuse of discretion,
18
otherwise not in accordance with law, and violates (i) 8 U.S.C. § 1184(p)(3)(A); (ii)
19 20 the Immigration and Nationality Act, 8 U.S.C. § 1103; (iii) the Violence Against

21 Women and Department of Justice Reauthorization Act of 2005; (iv) the

22 Administrative Procedure Act, §§ 5 U.S.C. §§ 551 et seq.; (v) the due process
23
clause and equal protection guarantee of the Fifth Amendment to the United
24 25 States Constitution; and (vi) Article II, §§ 1 and 3, of the United States
26 Constitution.

27

28

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1

XIII

2

SEVENTH CAUSE OF ACTION

3
[Unlawful rejection of law enforcement certifications]
4

5

78. Plaintiffs incorporate by this reference the allegations set out in ¶¶ 1-65

6 above as though fully re-alleged here.

7

79. Defendants’ policy and practice to reject certificates of cooperation

8
executed by law enforcement more than six months prior to the filing of U visa
9

10 applications violates (i) 8 U.S.C. §§ 1101(U)(i)(III) and 1184(p)(1); and (ii) the due

11 process clause and equal protection guarantee of the Fifth Amendment to the

12 United States Constitution.

13
XIV
14

15

EIGHTH CAUSE OF ACTION

16

[Unlawful failure to issue U Certifications]

17

80. Plaintiffs incorporate by this reference the allegations set out in ¶¶ 1-65

18
above as though fully re-alleged here.
19

20

81. Defendants’ policy and practice to reject or deny applications

21 unaccompanied by U certifications when applicants are unable despite good

22 faith efforts and U visa eligibility to obtain such certifications from other law
23
enforcement agencies violates (i) 8 U.S.C. §§ 1101(U)(i)(III) and 1184(p)(1); and
24 25 (ii) the due process clause and equal protection guarantee of the Fifth
26 Amendment to the United States Constitution.

27

28

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1

XV

2

NINTH CAUSE OF ACTION

3
[Unconstitutional Restriction on U Visa Eligibility]
4

5

82. Plaintiffs incorporate by this reference the allegations set out in ¶¶ 1-65

6 above as though fully re-alleged here.

7

83. 8 U.S.C. §§ 1101(U)(i)(III) in conjunction with 1184(p) operate to deny

8
U visa eligibility to the immigrant parents of United States citizen children who
9

10 are the victims of crimes and who or whose parents cooperated with law

11 enforcement agencies in the investigation or prosecution of such crimes, while

12 granting such benefit to the immigrant parents of undocumented and lawful
13
permanent resident children. This unequal treatment is irrational and violates the
14 15 equal protection guarantee of the Fifth Amendment to the United States

16 Constitution.

17

XVI

18
PRAYER FOR RELIEF
19

20

WHEREFORE, plaintiffs pray that this Court —

21

1. Assume jurisdiction over this action;

22

2. Certify this action as a class action pursuant to Rule 23(b)(2),

23
Fed.R.Civ.Proc.;

24

25

3. Declare that defendants’ policies, procedures, and practices as alleged

26 throughout this Complaint violate the Immigration and Nationality Act, as

27 amended by the Victims Protection Act; the Violence Against Women and

28 Department of Justice Reauthorization Act of 2005; the Administrative Procedure

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

1 Act, 5 U.S.C. §§ 551 et seq.; the due process clause and equal protection guarantee

2 of the Fifth Amendment to the United States Constitution; and Article II, §§ 1 and

3
3, of the United States Constitution;
4

5

4. Issue preliminary and permanent injunctions requiring that Defendants,

6 their agents, employees, and successors in office timely adjudicate U visa

7 applications presented by the individual named Plaintiffs, their proposed class 8
members, and the members and clients of the organizational Plaintiffs,
9 10 promulgate regulations or procedures implementing the U visa provisions of the

11 Victims Protection Act, and otherwise comply with the terms of the Victims

12 Protection Act and other applicable laws when adjudicating applications filed by
13
the named Plaintiffs, their proposed class members, and the clients and members
14 15 of the organizational Plaintiffs;

16

5. Award Plaintiffs costs of suit and attorney’s fees reasonably incurred as

17 a result of this lawsuit; and

18
6. Grant such further relief as the Court may deem just and proper.
19

20 Dated: March 6, 2007.

CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW

21

Peter A. Schey

Carlos R. Holguín

22

Cynthia Lucas

23
ASIAN PACIFIC ISLANDER LEGAL

24

OUTREACH

Victor M. Hwang

25

Ivy C. Lee

26

CENTRAL AMERICAN RESOURCE

27

CENTER

28

Daniel Sharp

Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

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

SANCTUARY FOR FAMILIES Julie E. Dinnerstein PUBLIC LAW CENTER Kenneth W. Babcock Kirsten M. Kreymann James Parry Eyster BUSTAMANTE AND ASSOCIATES, PLC Andres Bustamante
_______________________________________ Peter A. Schey
_______________________________________ Cynthia Lucas
_______________________________________ Victor M. Hwang Attorneys for Plaintiffs

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

 
 Case 3:07-cv-01307-PJH Document 33 Filed 08/16/2007 Page 1 of 13

United States District Court For the Northern District of California

1

2

3

4

5 UNITED STATES DISTRICT COURT
6 NORTHERN DISTRICT OF CALIFORNIA
7

8

9

10 CATHOLIC CHARITIES CYO (SAN FRANCISCO), et al.,
11 Plaintiffs,
12 v.
13

No. C 07-1307 PJH
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS

14 MICHAEL CHERTOFF, Secretary, U.S. Department of Homeland
15 Security, et al.,

16

Defendants.

_______________________________/

17

Now before this court is the motion of the government defendants to dismiss the

18

complaint in its entirety. Peter Schey and Carlos Holguin appeared for plaintiffs; Jeffrey S.

19

Robins and Victor M. Lawrence appeared for defendants. Having read all the papers

20

submitted and carefully considered the relevant legal authority, the government’s motion is

21

hereby GRANTED IN PART AND DENIED IN PART for the following reasons and for the

22

reasons stated at the hearing.

23

BACKGROUND

24

On March 6, 2007, individual and organizational plaintiffs Eleuterio Rodriguez Ruiz,

25

Felipe Sanchez Martinez, Francisca Ramirez Alvarez, Constantina Campos, Irma Moreno

26

Sanvicente, Rosa Galaviz, Maria Luisa Arroyo, Juan Rocha Rocha Francisco, Voces

27

Unidas Project, Jorge Dominguez Rivera, Central American Resource Center, Hermandad

28

Mexicana Nacional, Catholic Charities CYO, Sanctuary for Families, Friendly House,

Case 3:07-cv-01307-PJH Document 33 Filed 08/16/2007 Page 2 of 13

United States District Court For the Northern District of California

1 Diocesan Migrant & Refugee Services, Inc. of El Paso, Sergio Bucio Perez, Andres Bucio

2 Perez, Xiomara Castro, Ramona Quintero, Luis R. Nunez Hernandez, Ricardo Nunez

3 Hernandez, Elizabeth Lopez Gomez, International Institute of the East Bay, Maria Estervina

4 Perez, Giovana Saavedra (collectively “plaintiffs”) filed a complaint against Michael

5 Chertoff, Secretary of the U.S. Department of Homeland Security (“DHS”) and United

6 States Citizenship and Immigration Services, DHS (collectively “defendants”).

7

This is a proposed class action in which plaintiffs seek declaratory and injunctive

8 relief compelling defendants to discharge their statutory duty to permit immigrant crime

9 victims who assist law enforcement officials in the investigation or prosecution of criminal

10 offenders to apply for lawful immigration status.

11

The complaint alleges that on October 28, 2000, the Victims of Trafficking and

12 Violence Protection Act of 2000 (“VTVPA”), Public L. No. 106-386, Div A, 114 Stat. 1464

13 (2000) was signed into law. That Act permits immigrants who are victims of serious crimes

14 and who assist law enforcement to apply for and receive “U” visas. After possessing such

15 a visa for three years, such immigrants may apply for lawful permanent resident status.

16 Complaint ¶ 1. Yet, despite having six years to do so, defendants have unlawfully failed to

17 implement the program, have failed to promulgate regulations, establish procedures, or

18 publish application forms through which victims may apply for such visas. Id. ¶ 2. Instead,

19 defendants have granted some U visa eligible persons a quasi-legal temporary status

20 known as “deferred action” which is no more than an exercise of prosecutorial discretion

21 not to seek a crime victim’s immediate deportation or removal and confers no legal status.

22 In contrast, recipients of U visas are entitled, among other benefits, to be employed, to

23 travel abroad, to be referred for social and related services, and to accrue time toward

24 eligibility for lawful permanent residence. Id. ¶ 41. Applicants for deferred action must wait

25 until deferred action is granted to seek employment authorization, which adds a delay of a

26 few months to obtaining lawful employment. Id. ¶ 44. Plaintiffs also allege that defendants

27 have a policy of denying deferred action to individuals who seek relief based on asserted

28 2

Case 3:07-cv-01307-PJH Document 33 Filed 08/16/2007 Page 3 of 13

United States District Court For the Northern District of California

1 eligibility for U visas when they do not furnish certification pursuant to 8 USC § 1184(p)(1)

2 (which is certification that the alien has been helpful, is being helpful, or is likely to be

3 helpful in the investigation or prosecution of criminal activity) executed within six months of

4 their requests for deferred action. Id. ¶ 46-47.

5

The organizational plaintiffs generally provide legal aid to indigent immigrants,

6 including helping them apply for legal status. They allege that failure to implement the U

7 visa program makes the organization assisting clients apply for two benefits instead of one,

8 as it must assist clients to apply for deferred action and for temporary employment

9 authorization, relief that must be renewed annually through a new application. Then, the

10 organizations must assist their clients to apply for U visas once regulations are finally

11 promulgated. This diverts their limited resources and makes their work and achievement of

12 their goals more difficult and costly. See id. ¶¶ 6-13. Hermandad Mexicana Nacional

13 (“HMN”) also alleges that it has members and clients who are the victims of crime in the

14 United States and who have cooperated with law enforcement agencies, yet are unable to

15 obtain U visas. Id. ¶ 10.

16

As to the individual plaintiffs, each alleges to be prima facie eligible for a U visa.

17 They all have petitioned defendants to issue them U visas and to promulgate regulations

18 implementing the provision of such visas. Id. ¶ 14-15.

19

Plaintiffs allege the following causes of action, each of which has numerous statutory

20 and constitutional bases, as follows:

21

(1) failure to promulgate regulations implementing U visa program in violation of the

22 Victims Protection Act of 2000, Pub. L. No. 106-386, Div. A, 114 Stat. 1464 (2000), codified

23 at 8 U.S.C. § 1101(a)(15)(U); the Immigration and Nationality Act, 8 U.S.C. § 1103 (“INA”);

24 the Violence Against Women and Department of Justice Reauthorization Act, Pub. L. 109-

25 162, 119 Stat. 2960 (2006) (“VAWA”); the Administrative Procedure Act (“APA”), 5 U.S.C. §

26 551 et seq.; the due process clause and equal protection guarantee of the Fifth

27 Amendment to the United States Constitution; and Article II, §§ 1 and 3 of the United

28 3

Case 3:07-cv-01307-PJH Document 33 Filed 08/16/2007 Page 4 of 13

United States District Court For the Northern District of California

1 States Constitution;

2

(2) refusal to adjudicate U visa applications and issue U visas in violation of those

3 same statutory and constitutional provisions;

4

(3) refusal to adjudicate U visa applications and impact on the right to work and

5 travel in violation of those same statutory and constitutional provisions;

6

(4) failure to adjudicate applications for or issue derivative U visas in violation of

7 those same statutory and constitutional provisions;

8

(5) unlawful failure to publish employment authorization rule for notice and comment

9 in violation of the APA and the due process clause and equal protection guarantee of the

10 Fifth Amendment;

11

(6) failure to provide referrals to nongovernmental organizations in violation of 8

12 U.S.C. § 1184(p)(3)(A); the INA; VAWA; APA; the due process clause and equal protection

13 guarantee of the Fifth Amendment; and Article II, §§ 1 and 3 of the United States

14 Constitution;

15

(7) unlawful rejection of law enforcement certifications in violation of 8 U.S.C

16 1101(u)(i)(III) and 1184(p)(1); and the due process clause and equal protection guarantee

17 of the Fifth Amendment;

18

(8) Unlawful failure to issue U certifications in violation of 8 U.S.C 1101(u)(i)(III) and

19 1184(p)(1); and the due process clause and equal protection guarantee of the Fifth

20 Amendment; and

21

(9) unconstitutional restriction on U visa eligibility in violation of the equal protection

22 guarantee of the Fifth amendment, as 8 U.S.C 1101(u)(i)(III) and 1184(p)(1) operate to

23 deny protection to immigrant parents of US citizen children who are victims of crime and

24 whose parents cooperated with law enforcement, while granting such benefit to the

25 immigrant parents of undocumented and lawful permanent resident children. Complaint ¶¶

26 66-83. Plaintiffs seek declaratory relief, preliminary and permanent injunctions, and costs

27 of suit and attorneys’ fees. See Prayer for Relief.

28 4

Case 3:07-cv-01307-PJH Document 33 Filed 08/16/2007 Page 5 of 13

United States District Court For the Northern District of California

1

The government now moves to dismiss the complaint in its entirety pursuant to

2 Federal Rules of Civil Procedure (“FRCP”) 12(b)(1) and 12(b)(6). The government moves

3 on the following grounds with respect to the following causes of action.

4

First, they move to dismiss all plaintiffs – organizational and individual plaintiffs – on

5 the grounds that they lack standing (all causes of action).

6

Second, defendants move to dismiss all portions of plaintiffs’ causes of action

7 pursuant to the INA, VTVPA, and VAWA 2005 on the grounds that they do not have a

8 private right of action under these actions (first through fourth and seventh and eighth

9 causes of action).

10

Third, defendants move to dismiss all portions of plaintiffs’ causes of action under

11 Article II, Sections 1 and 3 of the Constitution, on the grounds that plaintiffs have no right of

12 action under these provisions (first through fourth and sixth causes of action insofar as they

13 rely on these provisions).

14

Fourth, defendants argue that the court lacks jurisdiction to consider plaintiffs’ claim

15 that defendants have failed to promulgate regulations, because plaintiffs cannot seek

16 judicial review for unreasonable delay under the APA where defendants’ actions are not

17 legally required, and because defendants’ actions are not final agency actions under the

18 APA (first and fourth causes of action).

19

Fifth, defendants argue that plaintiffs’ claims regarding the defendants’ alleged

20 failure to adjudicate and issue U visas and the resulting impacts on eligibility, derivatives,

21 and available benefits are not yet ripe for adjudication (second through fourth and sixth

22 causes of actions).

23

Sixth, defendants argue that plaintiffs’ fifth cause of action for unlawful failure to

24 publish employment authorization rule for notice and comment should be dismissed for

25 failure to state a claim (fifth cause of action).

26

Seventh, defendants argue that plaintiffs fail to allege a colorable equal protection

27 claim because they fail to allege they are part of a classification or group and because the

28 5

Case 3:07-cv-01307-PJH Document 33 Filed 08/16/2007 Page 6 of 13

United States District Court For the Northern District of California

1 portion of the statute at issue in the last cause of action has a rational basis (equal

2 protection portion of all causes of action).

3

Eighth, defendants argue that plaintiffs fail to allege a protected due process interest

4 in the promulgation of regulations, adjudication of applications, or potential benefits (due

5 process portion of all causes of action).

6

Ninth, defendants argue that even if there is basis for jurisdiction, the court should

7 not grant plaintiffs’ requests for injunctive or declaratory relief (refrain from entering relief on

8 all causes of action).

9

DISCUSSION

10

A. Legal Standard

11

1. Rule 12(b)(1)

12

Under Rule 12(b)(1), plaintiff bears the burden of establishing subject matter

13 jurisdiction. In effect, the court presumes lack of jurisdiction until the plaintiff proves

14 otherwise. See Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873

15 F.2d 1221, 1225 (9th Cir. 1989). A Rule 12(b)(1) jurisdictional attack may be facial or

16 factual. In a facial attack, the challenger asserts that the allegations contained in a

17 complaint are insufficient on their face to invoke federal jurisdiction. In a facial attack, the

18 court must consider allegations of the complaint as true. By contrast, in a factual attack,

19 the challenger disputes the truth of the allegations that, by themselves, would otherwise

20 invoke federal jurisdiction. In resolving a factual attack on jurisdiction, the district court may

21 review evidence beyond the complaint without converting the motion to dismiss into a

22 motion for summary judgment. The court then determines the facts for itself. See Safe Air

23 v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).

24

2. Rule 12(b)(6)

25

A motion to dismiss under Rule 12(b)(6) tests for the legal sufficiency of the claims

26 alleged in the complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003).

27 Review is limited to the contents of the complaint. Allarcom Pay Television, Ltd. v. Gen.

28 6

Case 3:07-cv-01307-PJH Document 33 Filed 08/16/2007 Page 7 of 13

United States District Court For the Northern District of California

1 Instrument Corp., 69 F.3d 381, 385 (9th Cir. 1995). To survive a motion to dismiss for

2 failure to state a claim, a complaint generally must satisfy only the minimal notice pleading

3 requirements of Federal Rule of Civil Procedure 8. Rule 8(a)(2) requires only that the

4 complaint include a “short and plain statement of the claim showing that the pleader is

5 entitled to relief.” Fed. R. Civ. P. 8(a)(2).

6

Specific facts are unnecessary – the statement need only give the defendant “fair

7 notice of the claim and the grounds upon which it rests.” Erickson v. Pardus, 127 S.Ct.

8 2197, 2200 (2007) (citing Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007)).

9 All allegations of material fact are taken as true. Erickson, 127 S.Ct. at 2200. However, a

10 plaintiff’s obligation to provide the grounds of his entitlement to relief “requires more than

11 labels and conclusions, and a formulaic recitation of the elements of a cause of action will

12 not do.” Bell Atlantic, 127 S.Ct. at 1964-65 (citations and quotations omitted). Rather, the

13 allegations in the complaint “must be enough to raise a right to relief above the speculative

14 level.” Id. at 1965. A motion to dismiss should be granted if the complaint does not proffer

15 enough facts to state a claim for relief that is plausible on its face. See id. at 1966-67.

16

B. Statutory Background

17

Congress created the “U” nonimmigrant classification (“U visa”) for qualifying victims

18 of certain criminal activity with the enactment of the Victims of Trafficking and Violence

19 Protection Act of 2000 (“VTVPA”), Public L. No. 106-386, Div A, 114 Stat. 1464 (October

20 28, 2000). According to Congress:

21

The purpose of this section is to create a new nonimmigrant visa

classification that will strengthen the ability of law enforcement

22

agencies to detect, investigate, and prosecute cases of domestic

violence, sexual assault, trafficking of aliens, and other crimes

23

described in section 101(a)(15)(U)(iii) of the Immigration and

Nationality Act committed against aliens, while offering protection

24

to victims of such offenses in keeping with the humanitarian interests

of the United States. This visa will encourage law enforcement

25

officials to better serve immigrant crime victims and to prosecute

crimes committed against aliens.

26

27 VTVPA, Pub. L. 106-386 at § 1513(a)(2)(A).

28 7

Case 3:07-cv-01307-PJH Document 33 Filed 08/16/2007 Page 8 of 13

United States District Court For the Northern District of California

1

Congress recognized that creating this nonimmigrant visa classification would

2 facilitate the reporting of crimes to law enforcement officials by “trafficked, exploited,

3 victimized, and abused aliens who are not in lawful immigration status” and would give “law

4 enforcement officials a means to regularize the status of cooperating individuals during

5 investigations or prosecutions.” Id. at § 1513(a)(2)(B). Providing temporary legal status to

6 victimized aliens also “comports with the humanitarian interests of the United States.” Id.

7 Congress also gave the Attorney General discretion to convert the status of such

8 individuals to that of permanent residents when doing so “is justified on humanitarian

9 grounds, for family unity, or is otherwise in the public interest.” Id. at § 1513(a)(2)(C).

10

Creating the U visa provision was a small component of a much larger Act. The

11 VTVPA1 has three divisions: The Trafficking Victims Protection Act of 2000; the Violence

12 Against Women Act of 2000; and a division with Miscellaneous Provisions. Section 1513

13 discussed above is part of the Violence Against Women Act of 2000.

14

In addition to the U visa, Congress created a “continued presence” provision

15 permitting the Secretary of Homeland Security to ensure the continued presence of

16 trafficking victims who are potential witnesses in a criminal investigation prosecution.

17 Congress directed the promulgation of regulations to implement those provisions within 180

18 days. See VTVPA, Pub. L. 106-386, § 107(c).

19

However, Congress did not similarly direct the promulgation of regulations of the U

20 visa sections of the VTVPA until Congress passed the Violence Against Women Act of

21 2005 (“VAWA 2005"), which the president signed on January 5, 2006. See VAWA 2005,

22 Pub. L. 109-162 at § 828, 119 Stat. 2960 (2006) (Directing that “not later than 180 days

23 after the date of enactment . . . the Attorney General, the Secretary of Homeland Security,

24 and the Secretary of State shall promulgate regulations to implement the provisions

25 contained in the Battered Immigrant Women Protection Act of 2000").

26

27

1 The sections of the VTVPA pertaining to U nonimmigrant status are codified in the

28 Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101(a)(15)(U), 1184(p) and 1255(m).

8

Case 3:07-cv-01307-PJH Document 33 Filed 08/16/2007 Page 9 of 13

United States District Court For the Northern District of California

1

There are certain requirements pertaining to U visas, including that: “the Attorney

2 General and other government officials, where appropriate, shall provide those aliens with

3 referrals to nongovernmental organizations to advise the aliens regarding their options

4 while in the United States and the resources available to them; and . . . the Attorney

5 General shall, during the period those aliens are in lawful temporary resident status under

6 that subsection, provide the aliens with employment authorization.” 8 U.S.C. § 1184(p)(3).

7 “In acting on any petition filed under this subsection, the consular officer or the Attorney

8 General, as appropriate, shall consider any credible evidence relevant to the petition.” §

9 1184(p)(4).

10

The code describing U visa eligibility defines that class of “nonimmigrant aliens” as:

11

(U) (i) subject to section 214(p) [8 USCS § 1184(p)], an alien who

files a petition for status under this subparagraph, if the Secretary

12

of Homeland Security determines that--

(I) the alien has suffered substantial physical or mental

13

abuse as a result of having been a victim of criminal activity

described in clause (iii);

14

(II) the alien (or in the case of an alien child under the age

of 16, the parent, guardian, or next friend of the alien) possesses

15

information concerning criminal activity described in clause (iii);

(III) the alien (or in the case of an alien child under the age

16

of 16, the parent, guardian, or next friend of the alien) has been

helpful, is being helpful, or is likely to be helpful to a Federal, State,

17

or local law enforcement official, to a Federal, State, or local

prosecutor, to a Federal or State judge, to the Service, or to other

18

Federal, State, or local authorities investigating or prosecuting

criminal activity described in clause (iii); and

19

(IV) the criminal activity described in clause (iii) violated the

laws of the United States or occurred in the United States (including

20

in Indian country and military installations) or the territories and

possessions of the United States;

21

(ii) if accompanying, or following to join, the alien described in

clause (i)--

22

(I) in the case of an alien described in clause (i) who is

under 21 years of age, the spouse, children, unmarried siblings

23

under 18 years of age on the date on which such alien applied for

status under such clause, and parents of such alien; or

24

(II) in the case of an alien described in clause (i) who is 21

years of age or older, the spouse and children of such alien; and

25

(iii) the criminal activity referred to in this clause is that

involving one or more of the following or any similar activity in

26

violation of Federal, State, or local criminal law: rape; torture;

trafficking; incest; domestic violence; sexual assault; abusive sexual

27

contact; prostitution; sexual exploitation; female genital mutilation;

being held hostage; peonage; involuntary servitude; slave trade;

28

9

Case 3:07-cv-01307-PJH Document 33 Filed 08/16/2007 Page 10 of 13

United States District Court For the Northern District of California

1

kidnapping; abduction; unlawful criminal restraint; false

imprisonment; blackmail; extortion; manslaughter; murder;

2

felonious assault; witness tampering; obstruction of justice; perjury;

or attempt, conspiracy, or solicitation to commit any of the above

3

mentioned crimes;

4 8 U.S.C. § 1101(a)(15)(U).
5 In addition, the Secretary of Homeland Security may adjust the status of an alien U
6 visa holder to permanent resident after three years of holding a U visa. 8 U.S.C. §
7 1255(m).
8 Because regulations were not yet promulgated to implement the U visa, on August
9 30, 2001 and on October 8, 2003, the Immigration and Naturalization Service and U.S.
10 Citizenship and Immigration Services issued interim guidance to establish interim
11 procedures to be followed. These guidances require United States Citizenship and
12 Immigration Services (“USCIS”) personnel to use mechanisms such as deferred action and
13 stays of removal to ensure that potential U victims are not removed from the country. See
14 Def. Ex. B (8/30/01 Guidance) at 4, Ex. C (10/8/03 Guidance). The guidances also provide
15 that such victims may receive work authorization. Id.
16 While there is no formal application for U visas, aliens who believe they qualify for
17 such visas may submit correspondence in support of a request. A team of adjudicators in
18 Vermont reviews the requests. At least 8,919 aliens have requested U visa status, and
19 approximately 7,494 have been granted interim relief, and approximately 630 cases are
20 pending. See Am. Young Decl. ¶¶ 6-7.
21 On January 6, 2006, USCIS issued further guidance that when the agency begins
22 adjudicating applications for U visas, applicants who were granted interim relief and whose
23 U visa applications are subsequently approved will have their U nonimmigrant status
24 recorded as of the date the request for U interim relief was approved. See Def. Ex. E
25 (1/6/06 Guidance).
26 On April 11, 2007, DHS sent an interim final rule for approval for publication in the
27 Federal Register. See Def. Ex. A (GSA printout). At the hearing, the government
28
10

Case 3:07-cv-01307-PJH Document 33 Filed 08/16/2007 Page 11 of 13

United States District Court For the Northern District of California

1 represented that the Secretary of the U.S. Department of Homeland Security was expected

2 to sign the proposed regulations on that very day, and that the regulations would then be

3 transmitted to the Federal Register, which would then publish the regulations for notice and

4 comment.

5

C. Government’s Motion to Dismiss

6

The plaintiffs in this case seek two different types of relief. First, they want the

7 government to promulgate regulations implementing the U visa program. Second, they

8 want the government to adjudicate U visa applications pursuant to the statutory

9 requirements. While it appears that some claims may ultimately become moot and others

10 may not be ripe, dismissal is not proper at this time.

11

First, it appears that certain claims will eventually be mooted when the government

12 promulgates regulations, which it is in the process of doing. The contours of the other

13 causes of action in this complaint, however, are not yet clear and will not be clear until the

14 government adopts regulations implementing the U visa program. Many claims may very

15 well not be ripe until the content of those regulations is determined. For example, with

16 regards to plaintiffs’ requests that the government adjudicate the applications, the court

17 cannot tell the agency how to adjudicate applications for U visas before the agency

18 implements the applicable regulations. Nor can the court decide whether the regulations

19 themselves violate any laws until those regulations exist.

20

Plaintiffs, however, have made sufficient allegations regarding their injury, such that

21 dismissal of entire causes of action on this basis is not warranted at this time. Nor is the

22 government’s argument that plaintiffs may not obtain relief under the APA persuasive, as

23 the government has failed to promulgate regulations within the given timeframe. See, e.g.,

24 Brock v. Pierce County, 476 U.S. 253, 260 n.7 (1986) (noting that the APA entitles any

25 person "adversely affected or aggrieved by agency action" to judicial review unless the

26 relevant statute precludes judicial review or "agency action is committed to agency

27 discretion by law", and further noting that the “statutory command that the Secretary shall

28 11

Case 3:07-cv-01307-PJH Document 33 Filed 08/16/2007 Page 12 of 13

United States District Court For the Northern District of California

1 act within 120 days does not commit such action to the Secretary's discretion” and that a

2 court would have the authority to compel agency action unlawfully withheld or unreasonably

3 delayed). The court cannot evaluate the “reasonableness of delay” at this early stage in

4 the litigation, as the government has not provided detailed reasons for its delay, and the

5 total amount of delay is still uncertain.

6

However, the portion of plaintiffs’ claims based on Article II of the Constitution are

7 dismissed. United States Const. Art. II, § 3 states that the President “shall take Care that

8 the Laws be faithfully executed.” Article II, § 1 requires the President to take an oath of

9 office that swearing or affirming to "faithfully execute the Office of President of the United

10 States, and will to the best of my Ability, preserve, protect and defend the Constitution of

11 the United States." While plaintiffs listed these sections of the Constitution in various

12 causes of action, plaintiffs were unable to provide the court with any explanation of the

13 meaning of these claims or any authority for pursuing their claims under this provision of

14 the Constitution.

15

With regards to all other aspects of the causes of action, once regulations are

16 enacted, the court will be able to decide what is left in the case. While there is no relief the

17 court could order at this point with regards to enacting regulations, as the agency is in the

18 process of promulgating those, the court will revisit this issue if regulations are not issued

19 by January.

20

CONCLUSION

21

Accordingly, the motion to dismiss is GRANTED IN PART AND DENIED IN PART as

22 follows.

23

(1) The portions of plaintiffs’ causes of action based on Article II of the

24

Constitution are DISMISSED;

25

(2) The rest of the government’s motion is DENIED WITHOUT PREJUDICE to

26

refiling when it becomes clear as to what ripe and not moot issues remain in

27

the plaintiffs’ complaint;

28 12

Case 3:07-cv-01307-PJH Document 33 Filed 08/16/2007 Page 13 of 13

United States District Court For the Northern District of California

1

(3) Plaintiffs shall amend the complaint within 30 days to add the name of the

2

new plaintiff that was formerly known as HMN. Plaintiffs must also include

3

the corporate status of that new plaintiff in their amendment;

4

(4) The government shall file a monthly status report on the 15th of every month

5

outlining the status of the regulations at issue;

6

(5) The court will hold a case management conference on January 17, 2007 at

7

2:30 p.m. in order to discuss the next steps in this case and to revisit the

8

issue of the government’s compliance with Congress’ direction to enact

9

regulations;

10

(6) The parties may notify the court by letter if they wish to advance the case

11

management conference due to the promulgation of the regulations;

12

(7) The parties shall not file any motions for summary judgment or for class

13

certification until further notice of the court.

14 IT IS SO ORDERED.

15 Dated: August 16, 2007 16 17

______________________________ PHYLLIS J. HAMILTON United States District Judge

18

19

20

21

22

23

24

25

26

27

28 13

 
 Case 3:07-cv-01307-PJH Document 16 Filed 05/09/2007 Page 1 of 2

United States District Court For the Northern District of California

1

2

3

4

5 UNITED STATES DISTRICT COURT
6 NORTHERN DISTRICT OF CALIFORNIA
7

8

9

10 CATHOLIC CHARITIES CYO (SAN FRANCISCO), et al.,
11 Plaintiffs,
12 v.
13 MICHAEL CHERTOFF, Secretary,
14 U.S. Department of Homeland Security, et al.,
15 Defendants.
16 _______________________________/

No. C 07-1307 PJH ORDER

17

Plaintiffs filed this proposed class action on March 6, 2007. On April 10, 2007,

18 plaintiffs filed certificates of service, showing service of the summons and complaint on all

19 defendants by certified mail on March 15, 2007. On April 18, 2007, plaintiffs filed a motion

20 for class certification.

21

On May 3, 2007, defendants filed a request for additional time to file their opposition

22 to the motion for class certification. Defendants, whose answer (not yet filed) is due 60

23 days after service of the summons and complaint, see Fed. R. Civ. P. 12(a)(3), have

24 indicated that they intend to file a motion to dismiss no later than May 18, 2007. Plaintiffs

25 filed no opposition to the request within the time allowed under the local rules. See Civil

26 L.R. 7-11(b).

27

In view of the fact that defendants have not answered the complaint and seek to file

28 a motion to dismiss in lieu of an answer, and in view of the fact that the court has not yet

Case 3:07-cv-01307-PJH Document 16 Filed 05/09/2007 Page 2 of 2

United States District Court For the Northern District of California

1 held a case management conference in this case, the court finds the motion for class

2 certification to be premature.

3

Rather than granting defendants’ request for an extension of time to respond to the

4 motion, the court prefers that plaintiffs withdraw the motion and refile it after the court has

5 ruled on the motion to dismiss. If plaintiffs are unwilling to withdraw the motion, and fail to

6 do so by May 16, 2007, the court will deny the motion without prejudice to refiling as

7 indicated above.

8

The date for the hearing on plaintiffs’ motion, previously set for Wednesday, May 23,

9 2007, is VACATED.

10

11 IT IS SO ORDERED.

12 Dated: May 9, 2007 13 14

______________________________ PHYLLIS J. HAMILTON United States District Judge

15

16

17

18

19

20

21

22

23

24

25

26

27

28 2

 
 Case 3:07-cv-01307-PJH Document 12 Filed 04/18/2007 Page 6 of 22

1
CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW
2 Peter A. Schey, Cal. Bar No. 58232

3

Carlos R. Holguin, Cal. Bar No. 90754 Cynthia Lucas, Cal. Bar No. 247335

4

256 S. Occidental Blvd. Los Angeles, Ca. 90057

5

Telephone: (213) 388-8693 exts. 104, 109, 116 Facsimile: (213) 386-9484

6
ASIAN PACIFIC ISLANDER LEGAL OUTREACH

7 Victor M. Hwang, Cal. Bar No. 162467
Ivy C. Lee, Cal. Bar No. 202375
8 1188 Franklin Street, Suite 202

9

San Francisco, CA 94109 Telephone: (415) 567-6255 exts. 24, 34

10 Facsimile: (415) 567-6248

11 Attorneys for Plaintiffs (additional counsel listed next page)

12

13

IN THE UNITED STATES DISTRICT COURT

14

FOR THE NORTHERN DISTRICT OF CALIFORNIA

15

SAN FRANCISCO DIVISION

16

CATHOLIC CHARITIES CYO (SAN
17 FRANCISCO); ET AL.,

) )

Case No. C 07-1307

18

Plaintiffs,

) ) MEMORANDUM OF LAW IN SUPPORT OF

19 20 21

-vs-
MICHAEL CHERTOFF, Secretary, U.S. Department of Homeland Security; ET AL.,

) MOTION FOR CLASS CERTIFICATION

) ) )
) )

Hearing: Hon. Phyllis J. Hamilton Date: May 23, 2007 Time: 9 am

22

Defendants.

)

23

_

)

24

25

26

27

28

Case 3:07-cv-01307-PJH Document 12 Filed 04/18/2007 Page 7 of 22

1

Plaintiffs’ counsel, continued
2

SANCTUARY FOR FAMILIES
3 Julie E. Dinnerstein, N.Y. Bar No. 2779510

4

Sanctuary for Families Brooklyn Family Justice Center

5

350 Jay Street, 15th Floor Brooklyn, NY 11201

6 Telephone: (718) 250-5103
Facsimile: (718) 624-4240

7

CENTRAL AMERICAN RESOURCE CENTER
8 Daniel Sharp, Cal. Bar No. 237473

9

2845 West 7th Street Los Angeles, CA 90005

10

Telephone: (213) 385-7800 Facsimile: (213) 385-1094

11 PUBLIC LAW CENTER 12 Kenneth W. Babcock, Cal. Bar No. 100183
Kirsten M. Kreymann, Cal. Bar No. 236630
13 601 Civic Center Drive West
Santa Ana, CA 92701
14 Telephone: (714) 541-1010 15 Fax: (714) 541-5157

16

James Parry Eyster, Mich. Bar No. P37894 3475 Plymouth Road

17 Ann Arbor, MI 48105
Telephone: (734) 827-7929

18 Facsimile: (734) 827-7925

19 BUSTAMANTE AND ASSOCIATES, PLC

20

Andres Bustamante, Cal. Bar No. 147025 634 S. Spring St., Suite 910

21

Los Angeles, CA 90014 Telephone: (213) 891-9009

22 Facsimile: (213) 627-1655

23 Of counsel:
Brooke Kirkland, Ill. Bar No. 219351
24 Center for Human Rights and Constitutional Law

25

26

27

28

Memo P&A in Support of Motion for Class Certification
- II -

Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

Case 3:07-cv-01307-PJH Document 12 Filed 04/18/2007 Page 8 of 22

1
OUTLINE OF CONTENTS
2
I Introduction...........................................................................................................................1
3

II Proposed class definition ....................................................................................................2
4

5 III This action satisfies the requirements of rule 23(a)..........................................................3

6

A Numerosity and impracticality of joinder. ............................................................3

7

B Common questions of law or fact. ..........................................................................4

8

C Typicality of claims. .................................................................................................5

9

D Adequacy of representation....................................................................................6

10 IV This action satisfies the requirements of Rule 23(b)(2)....................................................7

11 V Conclusion............................................................................................................................9

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Memo P&A in Support of Motion for Class Certification
- III -

Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

Case 3:07-cv-01307-PJH Document 12 Filed 04/18/2007 Page 9 of 22

1

2

3

4

Cases

TABLE OF AUTHORITIES

5 American Airlines, Inc. v. Transport Workers Union, 44 F.R.D. 47 (N.D. Okla. 1968).............6

6

Arkansas Education Association v. Board of Education, 446 F.2d 763 (8th Cir. 1971)...........................................................................................................................................3

7
Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975), cert. denied, 429 U.S. 816

8 (1976) .........................................................................................................................................3

9 Carey v. Greyhound Bus Co., 500 F.2d 1372 (5th Cir. 1974) .....................................................3

10 Catholic Social Services, Inc. v. Reno, Civ. S-86-1343 LKK (E.D. Cal.).....................................8 11 Cullen v. New York State Civil Service Commission, 435 F. Supp. 546 (E.D.N.Y. 1977) ..........5 12 Eisen v. Carlisle and Jacqueline, 391 F.2d 555 (2nd Cir. 1968) ..................................................5 13 Illinois Migrant Council v. Pilliod, 540 F.2d 1062 (7th Cir. 1976), modified, 548 14 F.2d 715 (7th Cir. 1977).............................................................................................................8 15 Immigrant Assistance Project v. INS, 709 F. Supp. 998 (W.D.Wa. 1989) .................................7 16 Immigrant Assistance Project v. INS, Civil No. C-88-379R (W.D. Wa.) ..................................8

17 In re U.S. Financial Securities Litigation, 69 F.R.D. 24 (S.D.Cal. 1975) ....................................3

18 Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122 (5th Cir. 1969) ................................6

19 Jordan v. County of Los Angeles, 669 F.2d 1311 (9th Cir. 1982)................................................3

20 Mendez v. INS, 563 F.2d 956 (9th Cir. 1977) ............................................................................7
21 Mersay v. First Republic Corp., 43 F.R.D. 465 (S.D.N.Y. 1968).................................................6 22 National Center for Immigrants' Rights, Inc. v. INS, Civ. No. 83-7927-KN (C.D. Cal.) ..........8 23 Newman, et al., v. Immigration & Naturalization Service, et al., No. CV 8724 4757-WDK (C.D. Cal.) ..............................................................................................................8 25 Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920 (2nd Cir. 1968) ..................5
26 Orantes-Hernandez v. Smith, 541 F. Supp. 351 (C.D. Cal. 1982)......................................3, 6, 7

27 Plyler v. Doe, 457 U.S. 202 (1982)..............................................................................................7

28 Ramon Sepulveda v. INS, 863 F.2d 1458 (9th Cir. 1988)...........................................................7

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1 Senter v. General Motors Corp., 532 F.2d 511 (6th Cir. 1976), cert. denied, 429
U.S. 870 (1976)...........................................................................................................................5
2
Yaffe v. Powers, 454 F.2d 1362 (1st Cir. 1972)...........................................................................3
3

4

Statutes and regulations

5 Fed.R.Civ.Proc. Rule 23................................................................................................... passim

6

Other authority

7 3B Moore's Federal Practice ¶ 23.05 [1], at 23-154 to 23-155 (1978)......................................3
8 3B MOORE'S FEDERAL PRACTICE ¶ 23.06-2, at 23-325.............................................................6
9 7 Wright and Miller, FEDERAL PRACTICE AND PROCEDURE: Civil § 1762 ............................3 10 7A Wright & Miller, FEDERAL PRACTICE AND PROCEDURE, § 1775......................................7 11 / / / 12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1 2 3
I
4

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CLASS CERTIFICATION INTRODUCTION

5

This is a class action seeking declaratory and injunctive relief compelling

6 Defendants Michael Chertoff, Secretary of the U.S. Department of Homeland Security

7 (“DHS”) and the United States Citizenship and Immigration Services (“USCIS”) to

8 discharge their statutory duty to receive and adjudicate applications for lawful status

9 from immigrant crime victims who assist law enforcement officials in the investigation or

10 prosecution of criminal offenders. On October 28, 2000—over six years ago—the Victims
11 of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, Div. A, 114 Stat. 12 1464 (2000), codified at, inter alia, 8 U.S.C. § 1101(a)(15)(U) (“Crime Victims Act” or “Act”), 13
was signed into law. Among other things, the Crime Victims Act permits immigrants who
14
are victims of serious crimes and who assist law enforcement to be granted “U” visas.
15 16 After possessing U status for three years, such immigrants are eligible for lawful 17 permanent resident status. Section 1101(a)(15)(U) reflects Congress’s judgment that
18 certain crime victims should be permitted to remain lawfully in the United States, both for

19 humanitarian reasons and so that they may help bring dangerous, violent criminals to

20 justice.

21

Despite having six years to do so, defendants have unlawfully failed to implement

22 the U visa program. Defendants have failed to promulgate regulations, establish

23 procedures, or publish application forms through which crime victims may apply for U 24
visas. Defendants have set no filing fee, nor have they trained or assigned officers to
25
adjudicate U visa applications. Nor have defendants referred immigrant crime victims for
26 27 social services, as required by the 6-year old U visa law. When individuals who are prima
28 facie eligible for U visas, including the named individual plaintiffs herein, request

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1 defendants to issue them U visas (or promulgate regulations and procedures permitting

2 them to apply for such visas), defendants have refused. Consequently, immigrant crime

3 victims have no way to apply for the immigration benefits Congress conferred on them

4 some six years ago, and 10,000 U visas allocated annually by Congress have gone unused.

5

Plaintiffs and crime victims’ advocates have repeatedly urged defendants to

6
promulgate regulations and procedures implementing the U visa program and to issue U
7
visas to eligible crime victims without further delay. Defendants have ignored these
8

9 entreaties, and plaintiffs now seek judicial relief on behalf of themselves and those

10 similarly situated requiring defendants to discharge their statutory duties and to restore

11 plaintiffs and their class members to the position they would be in but for defendants’

12 persistent non-feasance of their lawful obligations. Defendants’ failure to implement the

13 U visa statute not only unlawfully flaunts the will of Congress, it also discourages

14 immigrant victims of crimes from reporting such crimes and cooperating with law

15 enforcement, thus reducing the odds that perpetrators will be brought to justice. 16

17 II

PROPOSED CLASS DEFINITION

18

Plaintiffs seek certification on behalf of themselves and all other persons similarly

19 situated pursuant to Fed.R.Civ.Proc. Rule 23(a) and 23(b)(2). Plaintiffs propose this action

20 be certified on behalf of the following class:

21

All persons who are prima facie eligible for a U visa and who have applied for or

22

would apply for issuance of a U visa but for defendants’ failure to issue U visas or

23
promulgate regulations implementing § 1512 of the Victims of Trafficking and
24
Violence Protection Act of 2000.
25

26

The focus of the Court’s inquiry into the propriety of class certification is whether

27 there is a sufficient basis to support a “reasonable judgment” that the requirements of

28 Rule 23 have been met. Blackie v. Barrack, 524 F.2d 891, 900-01 (9th Cir. 1975), cert. denied,

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1 429 U.S. 816 (1976). As proposed, the class definition meets all the requirements of Rule

2 23, Fed.R.Civ.Proc., and this action should accordingly be certified as a (b)(2) class action.

3 III

THIS ACTION SATISFIES THE REQUIREMENTS OF RULE 23(a).

4

In order to be certified for class treatment, an action must first be shown to satisfy

5 the four requirements of Rule 23(a) of the Federal Rules of Civil Procedure. The instant 6
case meets these criteria.
7
A Numerosity and impracticality of joinder.
8

9

Rule 23(a)(1) requires that the class be “so numerous that joinder is impractical.”

10 Courts generally find the numerosity requirement of Rule 23(a)(1) satisfied when

11 relatively few class members are involved. See, e.g., Jordan v. County of Los Angeles, 669

12 F.2d 1311, 1319 (9th Cir. 1982); Carey v. Greyhound Bus Co., 500 F.2d 1372, 1381 (5th Cir.

13 1974) (number of class members assumed to be 28); Arkansas Education Association v. Board

14 of Education, 446 F.2d 763, 765-66 (8th Cir. 1971) (class membership of 20 persons). See

15 generally 3B MOORE'S FEDERAL PRACTICE ¶ 23.05 [1], at 23-154 to 23-155 (1978).

16

It is not necessary to determine the exact size of the class in order to satisfy Rule

17
23(a)(1), especially where it would be unreasonable to require the named plaintiffs to
18

identify the names of all class members. In re U.S. Financial Securities Litigation, 69 F.R.D.
19

20 24, 34 (S.D.Cal. 1975); 7 Wright and Miller, FEDERAL PRACTICE AND PROCEDURE: Civil §

21 1762. Rather, “the conduct complained of is the benchmark for determining whether a

22 subdivision (b)(2) class exists, making it uniquely suited to civil rights actions in which

23 the members of the class are often ‘incapable of specific enumeration.’” Yaffe v. Powers, 454

24 F.2d 1362, 1366 (1st Cir. 1972). “Where the exact size of the class is unknown but general

25 knowledge and common sense indicate that it is large, the numerosity requirement is

26 satisfied.” Orantes-Hernandez v. Smith, 541 F. Supp. 351, 371 (C.D. Cal. 1982).

27

Over the past six years, Defendants have issued “deferred action” to over 8,000

28
thousand individuals based on their prima facie eligibility for U visas. Exhibit 1. There is

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1 no question that most of these individuals would have received actual U visas—and even

2 become lawful permanent residents of the United States—but for Defendants’ failure to

3 implement the U visa statute. The numerosity requirement of Rule 23(a)(1) is plainly

4 satisfied here.

5

B Common questions of law or fact.

6
Rule 23(a)(2) requires that there be “questions of law or fact common to the class.”
7
The claims of the proposed class representatives and those of the proposed class members
8

9 raise common questions of law and fact: inter alia, —

10 •

whether Defendants may lawfully refuse to provide a path by which individuals

11

who are prima facie eligible for U visas may receive the immigration benefit

12

Congress has made available to them;

13 • whether Defendants’ failure to implement the U visa statute is impairing the ability

14 15 • 16 17 18
•
19 20 21 22 •

of law enforcement to bring criminals to justice; whether Defendants provide aliens who are eligible for U visas with referrals to nongovernmental organizations to advise the aliens regarding their options while in the United States and the resources available to them; whether Defendants may lawfully deny U visas to crime victims who cooperate with law enforcement agencies with a blanket policy and practice against issuing certifications of cooperation; whether Defendants must “re-capture” U visas available under prior years’ quotas

23

should the number of eligible U visa applicants who apply once Defendants begin

24

issuing U visas exceed the quota for the year in which the U visa program actually

25

begins; and

26 • 27
28

whether Defendants may alter their policies and practices respecting the issuance of employment authorization to would-be U visa applicants without complying with the rulemaking requirements of the Administrative Procedure Act.

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1

These questions are common to the named plaintiffs and to the members of the

2 proposed class because Defendants have acted and will continue to act on grounds

3 generally applicable to both the named plaintiffs and proposed class members.

4

Even where there are individual variations in the facts or legal issues as they relate

5 to a particular named plaintiff or proposed class member, the commonality requirement is

6
satisfied so long as the class shares some common question of law or fact. See, e.g., Eisen v.
7
Carlisle and Jacqueline, 391 F.2d 555, 562 (2nd Cir. 1968) (class certification granted
8

9 notwithstanding “varying fact patterns underlying each individual ... transaction ...”);

10 Senter v. General Motors Corp., 532 F.2d 511, 524 (6th Cir. 1976), cert. denied, 429 U.S. 870

11 (1976) (class certification granted in employment discrimination action brought on behalf

12 of Black employees even though it was “manifest that every decision to hire, fire or

13 discharge an employee may involve individual considerations”); Norwalk CORE v.

14 Norwalk Redevelopment Agency, 395 F.2d 920, 937 (2nd Cir. 1968) (class certified in

15 challenge to relocation practices of urban renewal project despite the different treatment
16 suffered by each tenant during the relocation process); Cullen v. New York State Civil 17
Service Commission, 435 F. Supp. 546, 559 (E.D.N.Y. 1977) (class certification granted in
18
lawsuit challenging coercive practices in obtaining political contributions from public
19 20 employees even though “fact questions specific to each instance of the alleged coercion

21 will remain”).

22

It is clear that the claims plaintiffs present here raise questions of law and fact

23 common to all proposed class members sufficient to warrant class certification.

24

C Typicality of claims.

25

Rule 23(a)(3) requires that the claims of the named plaintiffs be “typical of the

26 claims ... of the class.” Meeting this requirement usually follows from the presence of
27 common questions of law. Thus, courts have construed subdivisions (a)(2) and (a)(3) to be 28
largely duplicative. See 3B MOORE'S FEDERAL PRACTICE ¶ 23.06-2, at 23-325. See also

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1 Orantes-Hernandez v. INS, supra, 541 F. Supp. at 371; American Airlines, Inc. v. Transport

2 Workers Union, 44 F.R.D. 47, 48 (N.D. Okla. 1968) (holding (a)(3) met by representatives

3 “sharing common with the class any claim or defense it has”); Mersay v. First Republic

4 Corp., 43 F.R.D. 465, 468-69 (S.D.N.Y. 1968) (allegation that defendants engage in scheme

5 common to all members of class held to support finding that claims of representative

6
party typical). As set forth above, common questions of law and fact abound in the case
7
at bar.
8

9

Plaintiffs here have no interest in conflict with those of the proposed class. The

10 named plaintiffs have identical legal theories and will seek the same injunctive and

11 declaratory relief for themselves and for the class as a whole. Plaintiffs seek to vindicate

12 the rights of unnamed class members, rights that are violated through the absence of

13 uniform regulations, policies and practices. The typicality requirement of Rule 23(a)(3) is

14 therefore satisfied.

15

D Adequacy of representation.

16

The final requirement for class certification, set out in Rule 23(a)(4), is that the

17
named plaintiff “will fairly and adequately protect the interest of the class.” The two
18
principal elements of this requirement are (1) that the class representative’s interests be
19

20 co-extensive and not antagonistic to the class members’ interests; and (2) that counsel for

21 the named representatives be qualified. Johnson v. Georgia Highway Express, Inc., 417 F.2d

22 1122, 1124-25 (5th Cir. 1969).

23

The interests of the class representative here are not antagonistic to those of the

24 proposed class members. Their mutual goal is to secure a path by which they may obtain

25 the immigration benefits Congress long ago said they should have..

26

Plaintiffs’ lead counsel are employed by a non-profit organization specializing in

27 federal litigation on behalf of immigrants and refugees. They have successfully litigated

28
numerous class actions and individual cases in the federal courts involving the rights of

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1 immigrants. See, e.g., Plyler v. Doe, 457 U.S. 202 (1982); Ramon Sepulveda v. INS, 863 F.2d

2 1458 (9th Cir. 1988); Haitian Refugee Center v. Smith, 676 F.2d 1023 (5th Cir. 1982); Mendez v.

3 INS, 563 F.2d 956 (9th Cir. 1977);; Immigrant Assistance Project v. INS, 709 F. Supp. 998

4 (W.D.Wa. 1989); Orantes-Hernandez v. Smith, 541 F. Supp. 351 (C.D. Cal. 1982). Counsel

5 will adequately represent both named and unnamed class members. The requirements of

6
Rule 23(a)(4) are satisfied in this case.
7

IV
8

THIS ACTION SATISFIES THE REQUIREMENTS OF RULE 23(b)(2).

9

In addition to satisfying the four requirements of Rule 23(a), a certifiable class

10 action must meet one of the requirements of Rule 23(b). This action meets the

11 requirements of Rule 23(b)(2): i.e., “the party opposing the class has acted or refused to act

12 on grounds generally applicable to the class thereby making appropriate final injunctive

13 relief or corresponding declaratory relief with respect to the class as a whole ...”

14

Under subsection (b)(2) “the party opposing the class does not have to act directly

15 against each member of the class. As long as his actions would affect all persons similarly
16 situated, his acts apply generally to the whole class.” 7A Wright & Miller, FEDERAL 17
PRACTICE AND PROCEDURE, § 1775, at 19.
18
In this case the Defendants have refused to provide a path by which statutorily
19 20 eligible individuals may apply for the immigration benefit Congress has made available
21 to them. The class proposed in this case is a creation of Defendants’ challenged policies

22 and practices.

23

Courts have repeatedly certified classes comprising persons subjected to

24 challenged regulations, practices or policies. See, e.g., Catholic Social Services, Inc. v. Reno,

25 Civ. S-86-1343 LKK (E.D. Cal.); Newman, et al., v. Immigration & Naturalization Service, et al.,

26 No. CV 87-4757-WDK (C.D. Cal.); Immigrant Assistance Project v. INS, Civil No. C-88-379R
27 (W.D. Wa.); National Center for Immigrants' Rights, Inc. v. INS, Civ. No. 83-7927-KN (C.D. 28
Cal.) (order issued July 9, 1985, certifying a nationwide class of all persons subjected to an

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Case 3:07-cv-01307-PJH Document 12 Filed 04/18/2007 Page 18 of 22

1 INS regulation under challenge); see generally Illinois Migrant Council v. Pilliod, 540 F.2d

2 1062, 1072 (7th Cir. 1976), modified, 548 F.2d 715 (7th Cir. 1977). The requirements of

3 subsection (b)(2) have accordingly been met. 4

5

/ / /

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

V Conclusion

2

For the foregoing reasons, this action should be certified as a class action pursuant

3 to Rule 23(a) and (b)(2), Fed.R.Civ.Proc. 4 Dated: April 18 2007. 5 6 7 8 9 10 11 12

CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Peter A. Schey Carlos R. Holguín Cynthia Lucas
ASIAN PACIFIC ISLANDER LEGAL OUTREACH Victor M. Hwang Ivy C. Lee
CENTRAL AMERICAN RESOURCE CENTER Daniel Sharp
SANCTUARY FOR FAMILIES Julie E. Dinnerstein

13

PUBLIC LAW CENTER

14

Kenneth W. Babcock Kirsten M. Kreymann

15

James Parry Eyster

16

BUSTAMANTE AND ASSOCIATES, PLC

17

Andres Bustamante

18

19

______________s/______________

20

Peter A. Schey

21

Attorneys for Plaintiffs

22

23

24

25

26

27

28

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Case 3:07-cv-01307-PJH Document 12 Filed 04/18/2007 Page 20 of 22

1
EXHIBIT 1
2
DECLARATION OF VERONICA BARBA
3

4 I, Veronica Barba, declare and say as follows:
5

6 1. I am employed by the Center for Human Rights and Constitutional Law
7 located at 256 S. Occidental Blvd., Los Angeles, California, 90057.
8 2. On April 11, 2007 I contacted Sharon Rummery, the Regional Media
9 Manager at the Northwest Region Public Affairs Office of the U.S.
10 Citizenship and Immigration Services in San Francisco, California to
11 request the number of U Visa applications which have been filed as well as
12 those that have been granted deferred action.
13 3. During my April 11, 2007 conversation with Ms. Rummery, she stated that
14 she would locate the information and send it to me via email.
15 4. On the afternoon of April 11, 2007 I received an email from Ms. Rummery
16 containing the information attached on the following page.
17

18 I declare under penalty of perjury that the foregoing is true and correct.
19 Executed this 11th day of April, 2007, at Los Angeles, California.
20

21

22

23

24

25

_____

______________________________ 26

Veronica Barba 27

28 EXHIBIT 1
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Case 3:07-cv-01307-PJH Document 12 Filed 04/18/2007 Page 21 of 22

1

2

3
Here’s something as of early October…. I don’t know if it’s what’s desired, but it’s available…
4

5

Fiscal

DA

Requests

Requests

Requests

Requests

6
Yr

requests for DA

for DA that for DA that for DA left

7

@ start

that led to led to denial were

pending at

8

of FY

assessment (refusal)

removed

end of FY

9

(terminated)

10

11

2000

--

--

12

2001

--

--

13

--

--

--

--

--

--

2002

--

--

14

--

--

--

15

2003

--

--

--

--

462

16

2004

462

813

276

1

N/A

17

2005

N/A

2267

507

7

574

18

2006

574

4941

858

1

436

19

20

21

22

23

24

25

26

27 28 / / /

EXHIBIT 1

U

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1
PROOF OF SERVICE BY OVERNIGHT DELIVERY AND EMAIL

2
I declare and say as follows:

3

1. I am over the age of eighteen years and am not a party to this action. I am

4
employed in the County of Los Angeles, State of California. My business address is 256 S.

5
Occidental Blvd., Los Angeles, California, 90057, in said county and state.

6
2. On April 18, 2007, I caused to be served a true and correct copy of the attached

7
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CLASS

8
CERTIFICATION on defendants by email addressed to Ila Casy Deiss ila.deiss@usdoj.gov,

9
Tiffani Chiu tiffani.chiu@usdoj.gov Victor M. Lawrence victor.lawrence@usdoj.gov

10
Jeffrey S. Robins jeffrey.robins@usdoj.gov and Federal Express overnight delivery,

11
addressed to:

12

Victor Lawrence

13

Office of Immigrtaion Litigation

14

Department of Justice Suite 7025S, National Place

15

1331 Pennsylvania Avenue, N.W. Washington, D.C. 20004

16

17

I declare under penalty of perjury that the foregoing is true and correct.

18

Executed this 18th day of March, 2007, at Los Angeles, California.

19

20
______________s/______________

21

Peter A. Schey

22 / / /

23

24

25

26

27

28

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 Case4:07-cv-01307-PJH Document45 Filed02/20/08 Page1 of 40

1 CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW

Peter A. Schey, Cal. Bar No. 58232
2 Carlos R. Holguin, Cal. Bar No. 90754

3

Angela Viramontes, Cal. Bar No. 228228 256 S. Occidental Blvd.

4

Los Angeles, CA 90057 Telephone: (213) 388-8693 exts. 304, 309, 310

5

Facsimile: (213) 386-9484 Email: pschey@centerforhumanrights.org

6 crholguin@centerforhumanrights.org

7 aviramontes@centerforhumanrights.org

8 Attorneys for Plaintiffs (additional counsel listed next page)

9

IN THE UNITED STATES DISTRICT COURT

10

FOR THE NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

CATHOLIC CHARITIES CYO; INTERNATIONAL INSTITUTE OF THE EAST BAY; VOCES UNIDAS

) )

Case No. C 07-1307 PJH

13 PROJECT; SANCTUARY FOR FAMILIES;

)

14

DIOCESAN MIGRANT & REFUGEE SERVICES, INC.; ELIZABETH LOPEZ GOMEZ; SANDRA

) FIRST AMENDED COMPLAINT FOR ) DECLARATORY AND INJUNCTIVE RELIEF

15

BUCIO; CONSTANTINA CAMPOS; MARIA ESTERVINA PEREZ; FRANCISCA RAMIREZ

) ) [CLASS ACTION]

16

ALVAREZ; IRMA MORENO SANVICENTE;

)

MARIA LUISA ARROYO TORRES; ALMA ROSA )

17 PADILLA DE HERNANDEZ; MARIA

)

HERNANDEZ; ROSA AMEZQUITA RAZO;

)

18 ANTONIO PEREZ GARCIA; VERONICA REYES )

19

BONILLA; ANDRES BUCIO PEREZ and SERGIO )

BUCIO PEREZ, through their next friend,

)

20

SANDRA BUCIO; MARLINDA CLARKE and PATRICIA GARCIA, BLANCA ROSSELL

) )

21

)

Plaintiffs,

)

22 -vs-

)

)

23 MICHAEL CHERTOFF, Secretary, U.S.

)

Department of Homeland Security; UNITED )

24 STATES CITIZENSHIP AND IMMIGRATION

)

25

SERVICES, U.S. DEPARTMENT OF HOMELAND )

SECURITY,

)

26

)

Defendants.

)

27

_ )

28

Case4:07-cv-01307-PJH Document45 Filed02/20/08 Page2 of 40

1

Plaintiffs’ counsel, continued

2

ASIAN PACIFIC ISLANDER LEGAL OUTREACH
3 Victor M. Hwang, Cal. Bar No. 162467

4

Ivy C. Lee, Cal. Bar No. 202375 1188 Franklin Street, Suite 202

5

San Francisco, CA 94109 Telephone: (415) 567-6255 exts. 24, 34

6 Facsimile: (415) 567-6248

7 SANCTUARY FOR FAMILIES
Julie E. Dinnerstein, N.Y. Bar No. 2779510

8 Sanctuary for Families

Brooklyn Family Justice Center
9 350 Jay Street, 15th Floor

10

Brooklyn, NY 11201-2900 Telephone: (718) 250-5103

11 Facsimile: (718) 624-4240

12 CENTRAL AMERICAN RESOURCE CENTER
Daniel Sharp, Cal. Bar No. 237473
13 2845 West 7th Street
Los Angeles, CA 90005
14 Telephone: (213) 385-7800 15 Facsimile: (213) 385-1094

16

PUBLIC LAW CENTER Kenneth W. Babcock, Cal. Bar No. 100183

17

Kirsten M. Kreymann, Cal. Bar No. 236630 601 Civic Center Drive West

18 Santa Ana, CA 92701
Telephone: (714) 541-1010

19

James Parry Eyster, Mich. Bar No. P37894
20 3475 Plymouth Road

21

Ann Arbor, MI 48105 Telephone: (734) 827-7929

22 Facsimile: (734) 827-7925

23 BUSTAMANTE AND ASSOCIATES, PLC
Andres Bustamante, Cal. Bar No. 147025
24 634 S. Spring St., Suite 910
Los Angeles, CA 90014
25 Telephone: (213) 891-9009 26 Facsimile: (213) 627-1655

27

28

Amended Complaint No. C 07-1307 PJH

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1

I

2

PRELIMINARY STATEMENT

3

1. This is a class action seeking declaratory and injunctive relief compelling

4 defendants Secretary of U.S. Department of Homeland Security (“DHS”) and the United

5 States Citizenship and Immigration Services (“USCIS”) to make whole immigrant crime 6
victims who have assisted law enforcement officials in the investigation or prosecution
7
of criminal offenders, and who have been denied timely issuance of lawful immigration
8 9 status. On October 28, 2000—over seven years ago—the Victims of Trafficking and

10 Violence Protection Act of 2000, Pub. L. No. 106-386, Div. A, 114 Stat. 1464 (2000),

11 codified at, inter alia, 8 U.S.C. §§ 1101(a)(15)(U) and 1184(p) (“Crime Victims Act”), was

12 signed into law. Among other things, the Crime Victims Act confers lawful immigration

13 status—designated a “U visa”—on certain immigrant crime victims and their close

14 family members. Three years after being issued U visas, such crime victims and their

15 close family members are eligible for lawful permanent residence. Section

16 1101(a)(15)(U) reflects Congress’s judgment that immigrant crime victims and their

17
close family members should be permitted to remain lawfully in the United States, both

18

for humanitarian reasons and to encourage them to help bring criminals to justice.
19

20

2. For nearly seven years after enactment of the Crime Victims Act, defendants

21 refused to implement the U visa law. Defendants failed to promulgate regulations,

22 establish procedures, or publish application forms through which crime victims could

23 apply for U visas. Defendants set no filing fee, nor did they train or assign officers to

24 adjudicate U visa applications. When individuals who were prima facie eligible for U

25 visas, including the named individual plaintiffs herein, requested U visas, defendants

26 refused. Defendants’ failure to implement the U visa statute not only flouted Congress’s
27 will, it discouraged immigrant victims from reporting crime and cooperating with law 28
enforcement, thus impeding the arrest and conviction of criminal offenders.

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1

3. On September 17, 2007, some six months after this action commenced,

2 defendants published regulations implementing the U visa program. See 72 Fed. Reg.

3 53014 (September 17, 2007). Although defendants have now provided crime victims

4 with a means to obtain U visas, their regulations fall short of redressing the injuries

5 plaintiffs and their class members suffered as a result of defendants’ unlawful refusal to

6

implement the U visa program. These ongoing injuries include, inter alia, the following:

7

a)
8

On information and belief, defendants have yet to issue anyone an actual U visa,

9

nor have defendants conferred lawful permanent residence on persons who

10

established prima facie eligibility for U visas over three years ago, and have

11

remained continuously physically present in the United States ever since.

12 b) The children of crime victims who turned 21 years of age during the nearly seven

13

years defendants failed to issue U visas are no longer eligible for derivative U

14 15 16 17 18 19 20 c) 21 22

visas. Similarly, the parents and unmarried siblings of young crime victims who turned 21 during defendants’ delay are no longer eligible for derivative U visas. As a direct and proximate result of defendants’ nonfeasance and the promulgation of unlawful regulations, countless close family members of crime victims have “aged-out” of eligibility for derivative U visas. Defendants’ regulations create exacting requirements, nowhere authorized by statute, for certifications crime victims must obtain from law enforcement agencies to qualify for U visas. The regulations require that law enforcement

23

certifications be signed by the head of the investigating law enforcement agency

24

or an official specifically designated to execute such certifications on behalf of the

25

agency’s head. The regulations also require that law enforcement certifications be

26

executed no more than six months prior to the filing of a U visa application.

27

These provisions graft ultra vires eligibility requirements onto the U visa statute

28

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and place nearly insurmountable obstacles to crime victims’ obtaining the lawful

2

status Congress sought to confer on them.

3 d) 4 5 6 7 8 9 10 11

8 U.S.C. § 1184(p)(1) provides specifically that defendants should themselves issue law enforcement certifications to the victims of crimes they investigate or prosecute. Defendants’ regulations wholly fail to implement this provision: they provide no standards, procedures or guidelines on when the Department of Homeland Security, its subordinate entities, or its officers or agents will issue such certifications. In practice, defendants uniformly refuse to issue law enforcement certifications to crime victims no matter how meritorious their requests. Defendants’ failure to implement the certification provision of §

12

1184(p)(1) and to issue certifications unlawfully blocks crime victims from

13

obtaining the lawful status Congress sought to confer on them.

14 e) Although the Crime Victims Act confers identical rights on crime victims and

15

their close family members to employment authorization, defendants

16

automatically issue principal U visa holders employment authorization, but

17
unlawfully require derivative U visa holders to apply separately for employment
18
authorization.
19

20 By this amended complaint, plaintiffs seek relief on behalf of themselves and those

21 similarly situated requiring defendants to restore them and those similarly situated to

22 the position they would be in but for defendants’ unlawful actions as alleged herein.

23

II

24

JURISDICTION AND VENUE

25

4. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 (federal

26 question jurisdiction). Declaratory judgment is sought pursuant to 28 U.S.C. §§ 2201-02.

27

5. Venue is properly in this district pursuant to 28 U.S.C. § 1391(b) and (e)(1), (2)

28
and (4), because some of the acts complained of occurred in this district, some of the

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1 plaintiffs reside in this district, defendants have offices in this district, and no real

2 property is involved in this action.

3

III

4

PARTIES

5

6. Plaintiff CATHOLIC CHARITIES CYO is a non-profit organization serving the

6
immigrant communities of San Francisco, Marin, and San Mateo Counties in California.
7
Among other activities, CATHOLIC CHARITIES CYO provides legal aid to indigent
8

9 immigrants who wish to legalize their status. Among CATHOLIC CHARITIES CYO’s

10 clients are immigrants who (i) are the victims of crime in the United States, (ii)

11 cooperated with law enforcement agencies, and (iii) applied for U visas, but for several

12 years were unlawfully denied U visas by defendants’ failure to implement the Crime

13 Victims Act as herein alleged. These clients include, inter alia, plaintiffs SANDRA BUCIO,

14 ANDRES BUCIO PEREZ, and SERGIO BUCIO PEREZ, all of whom continue to suffer ongoing

15 injuries as a result of defendants’ conduct as allege herein.

16

7. Plaintiff INTERNATIONAL INSTITUTE OF THE EAST BAY (“IIEB”) is a non-profit

17
legal organization that provides free and low-cost legal and social services to
18
immigrants and refugees in the East Bay of northern California. Among other activities,
19

20 IIEB provides legal aid to indigent immigrants who wish to legalize their status. Among

21 IIEB’s clients are immigrants who (i) are the victims of crime in the United States, (ii)

22 cooperated with law enforcement agencies, and (iii) applied for U visas, but for several

23 years were unlawfully denied U visas by defendants’ failure to implement the Crime

24 Victims Act as herein alleged. These clients include, inter alia, Ibis Brignardello, Luis

25 Perez, Javier Gonzalez, Circe Gonzalez, and Heather Malise, all of whom are members
26 of the class proposed herein and continue to suffer ongoing injuries as a result of 27 defendants’ conduct as allege herein. 28

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1

8. Plaintiff VOCES UNIDAS PROJECT OF THE CENTER FOR HUMAN RIGHTS AND

2 CONSTITUTIONAL LAW (“VOCES UNIDAS”) is a national program that provides free legal

3 services to Mexican immigrants residing in the United States, including the survivors of
4 domestic abuse and victims of crime. The VOCES UNIDAS project also provides technical 5 support and funding to numerous non-profit organizations providing free legal services 6
to immigrant survivors of domestic violence and victims of crime. Among the clients of
7
plaintiff VOCES UNIDAS are immigrants who (i) are the victims of crime in the United
8 9 States (and/or their close family members), (ii) cooperated with law enforcement
10 agencies, and (iii) applied for U visas, but for several years were unlawfully denied U
11 visas by defendants’ failure to implement the Crime Victims Act as herein alleged.

12 These clients include, inter alia, plaintiffs ROSA AMEZQUITA RAZO, ANTONIO PEREZ

13 GARCIA, VERONICA REYES BONILLA, MARIA LUISA ARROYO TORRES, and ALMA ROSA

14 PADILLA DE HERNANDEZ, all of whom continue to suffer ongoing injuries as a result of

15 defendants’ conduct as allege herein.

16

9. Plaintiff SANCTUARY FOR FAMILIES (“SFF”) is a New York not-for-profit

17
corporation with principal offices in New York, New York. SFF is dedicated to

18

providing services to victims of domestic violence. Among other activities, SFF
19

20 provides free legal services to low-income and under-served immigrants who wish to

21 legalize their status. Among SFF’s clients are immigrants who (i) are the victims of

22 crime in the United States (and/or their close family members), (ii) cooperated with law

23 enforcement agencies, and (iii) applied for U visas, but for several years were

24 unlawfully denied U visas by defendants’ failure to implement the Crime Victims Act

25 as herein alleged. These clients include, inter alia, plaintiffs MARLINDA CLARKE, MARIA

26 HERNANDEZ, CONSTANTINA CAMPOS, and IRMA MORENO SANVICENTE, all of whom
27 continue to suffer ongoing injuries as a result of defendants’ conduct as allege herein. In 28
addition to other injuries, as a direct and proximate result of defendants’ failure to

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1 timely implement the U visa program and refusal to permit the close family members of

2 deferred action recipients to enter the United States without special permission to do so,

3 SFF has had to apply for humanitarian parole for children living abroad, a process so

4 time consuming that SFF has only applied on behalf of four children to date.

5

10. Plaintiff DIOCESAN MIGRANT & REFUGEE SERVICES, INC (“DMRS”) is a not-

6
for-profit legal aid clinic located in El Paso, Texas. Among other activities, DMRS
7
provides free and low cost legal services to the low-income immigrants eligible to
8

9 legalize their status, including immigrant victims of crime who cooperated with law

10 enforcement agencies. The unavailability of U visas requires DMRS to assist clients to

11 apply for two benefits instead of one. First, it must assist clients to apply for “deferred

12 action” and for temporary employment authorization, relief that must be renewed

13 through a new application annually. Second, if and when implementing regulations are

14 finally promulgated, DMRS must then assist its clients to apply for U visas. DMRS also
15 has several clients who are the immigrant parents of United States citizen children who 16 are the victims of crime and who or whose parents cooperated with law enforcement 17
agencies in the investigation or prosecution of such crimes, such that 8 U.S.C. §§
18
1101(U)(i)(III) in conjunction with 1184(p) operate to deny U visa eligibility to these
19 20 clients while granting such benefit to the immigrant parents of undocumented and
21 lawful permanent resident children. Defendants’ non-feasance and other unlawful
22 policies as herein alleged are therefore diverting the limited resources of DMRS and

23 making their work and achievement of their goals more difficult and costly. DMRS’s

24 delivering services to crime victims eligible for U visas is more difficult, time-

25 consuming, and expensive than is its delivering like services to persons who seek lawful
26 status under provisions of the Immigration and Nationality Act for which 27 implementing regulations have been duly promulgated. 28

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1

11. As a direct and proximate result of defendants’ non-feasance as alleged

2 herein, plaintiffs CATHOLIC CHARITIES CYO, IIEB, VOCES UNIDAS, SFF and DMRS were

3 for nearly seven years unable to obtain U visas for their clients, making the achievement
4 of their goals substantially more difficult. Some clients of said plaintiff organizations 5 were unwilling to apply for deferred action because they feared they might thereby 6
prejudice their eligibility for U visas because defendants’ U visa regulations could be
7
inconsistent with the guidelines defendants used in determining whether to grant
8 9 deferred action. Nor have defendants’ interim U visa regulations ended their
10 interference with the work of plaintiffs CATHOLIC CHARITIES CYO, IIEB, VOCES UNIDAS,
11 SFF and DMRS. The long delay in defendants’ issuing U visas is requiring plaintiffs

12 CATHOLIC CHARITIES CYO, IIEB, VOCES UNIDAS, SFF and DMRS to assist clients apply

13 for two benefits instead of one. First, said plaintiffs assisted clients to apply for

14 “deferred action,” and now they are assisting those same clients apply for U visas.
15 Delivering services to crime victims eligible for U visas is more difficult, time16 consuming, and expensive than the delivery of comparable services to persons who 17
seek lawful status under provisions of the Immigration and Nationality Act for which
18
implementing regulations have been timely promulgated. Defendants’ non-feasance
19 20 and other unlawful actions as herein alleged therefore continue to divert the limited
21 resources of plaintiffs CATHOLIC CHARITIES CYO, IIEB, VOCES UNIDAS, SFF and DMRS
22 and make their work and achievement of their goals more difficult and costly.

23

12. Plaintiffs ELIZABETH LOPEZ GOMEZ, SANDRA BUCIO, CONSTANTINA CAMPOS,

24 MARIA ESTERVINA PEREZ, FRANCISCA RAMIREZ ALVAREZ, IRMA MORENO SANVICENTE,

25 MARIA LUISA ARROYO TORRES, ALMA ROSA PADILLA DE HERNANDEZ and MARIA
26 HERNANDEZ are victims of particularly serious crimes in the United States; each is prima 27 facie eligible for a U visa under 8 U.S.C. §§ 1101(U)(i) and 1184(p) because — 28

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1

(a) she or he suffered substantial physical or mental abuse as a result of having

2

been the victim of criminal activity;

3

(b) she or he possesses information concerning the criminal activity;

4

(c) she or he has been helpful, is being helpful, or is likely to be helpful to

5

Federal, State, or local law enforcement official investigating or prosecuting the

6
criminal activity;
7
(d) the criminal activity violated the laws of the United States or occurred in the
8

9

United States;

10

(e) the criminal activity involved rape, trafficking, domestic violence, sexual

11

assault, false imprisonment, felonious assault or similar activity; and

12

(f) a Federal, State, or local law enforcement official, prosecutor, judge, or other

13

Federal, State, or local authority investigation criminal activity has certified that

14

he or she has been helpful, is being helpful, or is likely to be helpful in the

15

investigation or prosecution of criminal activity described in 8 U.S.C. §

16

1101(a)(15)(U)(iii).

17 13. Plaintiffs ROSA AMEZQUITA RAZO, ANTONIO PEREZ GARCIA, and VERONICA
18

19 REYES BONILLA are victims of particularly serious crimes in the United States

20 investigated by defendants, but whose helpfulness to the investigation or prosecution of

21 such crimes defendants have unlawfully refused to certify; each is otherwise prima facie

22 eligible for a U visa under 8 U.S.C. § 1101(U)(i) because —

23

(a) she or he suffered substantial physical or mental abuse as a result of having

24

been the victim of criminal activity;

25
(b) she or he possesses information concerning the criminal activity;

26

27

28

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(c) she or he has been helpful, is being helpful, or is likely to be helpful to

2

Federal, State, or local law enforcement official investigating or prosecuting the

3

criminal activity;

4

(d) the criminal activity violated the laws of the United States or occurred in the

5

United States; and

6
(e) the criminal activity involved rape, trafficking, domestic violence, sexual
7
assault, false imprisonment, felonious assault or similar activity.
8

9

14. Plaintiffs ANDRES BUCIO PEREZ and SERGIO BUCIO PEREZ are the sons of

10 plaintiff SANDRA BUCIO; plaintiff MARLINDA CLARKE is the daughter of plaintiff MARIA

11 HERNANDEZ. Plaintiff PATRICIA GARCIA is the daughter of Martha Garcia, a crime

12 victim who is prima facie eligible for a U visa pursuant to 8 U.S.C. §§ 1101(U)(i) and

13 1184(p). Plaintiffs ANDRES BUCIO PEREZ, SERGIO BUCIO PEREZ, MARLINDA CLARKE and

14 PATRICIA GARCIA, are prima facie eligible for derivative U visas under 8 U.S.C. §
15 1101(U)(ii) because they are children accompanying or following to join aliens described 16 in 8 U.S.C. §§ 1101(U)(i). 17
15. Plaintiff ELIZABETH LOPEZ GOMEZ is a citizen and national of Mexico. She is a
18
resident of San Mateo, California. Plaintiff LOPEZ GOMEZ is a victim of the infliction of
19 20 corporal injury on a spouse, criminal assault, and criminal threats. Plaintiff LOPEZ
21 GOMEZ reported these crimes to the Menlo Park Police Department, and the perpetrator
22 was arrested and prosecuted as a result. On or about April 30, 2004, a San Mateo

23 County deputy district attorney certified that plaintiff LOPEZ GOMEZ possesses

24 information concerning this criminal activity and was being helpful in the prosecution

25 of the perpetrator. She is in all other respects statutorily eligible for the issuance of a U

26 visa. On or about May 21, 2004, plaintiff LOPEZ GOMEZ presented defendants with a
27 written request that they issue her lawful status in accordance with the Crime Victims 28
Act. On or about January 5, 2005, defendants granted plaintiff LOPEZ GOMEZ deferred

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1 action, but refused to adjudicate her eligibility for a U visa because they had yet to

2 implement the U visa program. But for defendants’ refusal to grant plaintiff LOPEZ

3 GOMEZ a U visa, she would have accrued three years of continuous physical presence in
4 the United States following receipt of a U visa on or about January 5, 2007, and since 5 then would have been eligible for lawful permanent residence. On or about November 6
12, 2007, plaintiff LOPEZ GOMEZ again applied for a U visa in accordance with
7
defendants’ regulations. Defendants have yet to issue plaintiff LOPEZ GOMEZ a U visa,
8 9 and as a direct and proximate result of defendants’ non-feasance as alleged herein,
10 plaintiff LOPEZ GOMEZ, among other injuries, continues to be denied lawful permanent
11 residence and accrued time towards eligibility for naturalization.

12

16. Plaintiff SANDRA BUCIO is a citizen and national of Mexico. She is a resident

13 of San Francisco, California. Plaintiff SANDRA BUCIO is a victim of aggravated battery,

14 false imprisonment and aggravated assault. She cooperated with law enforcement in
15 the investigation and prosecution of the crime against her and is in all other respects 16 statutorily eligible for the issuance of a U visa. On or about February 1, 2004 plaintiff 17
SANDRA BUCIO presented defendants a written request for lawful status in accordance
18
with the Crime Victims Act. On or about August 3, 2004, defendants granted plaintiff
19 20 SANDRA BUCIO deferred action, but refused to adjudicate her eligibility for a U visa
21 because they had yet to implement the U visa program. But for defendants’ refusal to
22 grant plaintiff SANDRA BUCIO a U visa, she would have accrued three years of

23 continuous physical presence in the United States following receipt of a U visa on or

24 before August 3, 2007, and since then would have been eligible for lawful permanent

25 residence. On or about November 2, 2007, plaintiff SANDRA BUCIO again applied for a U

26 visa in accordance with defendants’ regulations. Defendants have yet to issue plaintiff

27 SANDRA BUCIO a U visa, and as a direct and proximate result of defendants’ non28
feasance as alleged herein, plaintiff SANDRA BUCIO, among other injuries, continues to

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1 be denied lawful permanent residence and accrued time towards eligibility for

2 naturalization.

3

17. Plaintiff CONSTANTINA CAMPOS is a citizen and national of Mexico. She is a

4 resident of Brooklyn, New York. She is a victim of domestic violence, cooperated with
5 law enforcement, and is statutorily eligible for a U visa. In or about July 2002, she 6
petitioned the USCIS for a U visa and for deferred action. Over 13 months later, on or
7
about October 17, 2003, defendants granted plaintiff CAMPOS deferred action, but
8 9 refused to grant her a U visa because they had yet to implement the U visa program.
10 But for defendants’ refusal to grant plaintiff CAMPOS a U visa, she would have accrued

11 three years of continuous physical presence in the United States following receipt of a U

12 visa on or about October 17, 2006, at which time she would have become eligible for

13 lawful permanent residence. Defendants have yet to issue plaintiff CAMPOS a U visa,

14 and as a direct and proximate result of defendants’ non-feasance as alleged herein,
15 plaintiff CAMPOS, among other injuries, continues to be denied lawful permanent 16 residence and accrued time towards eligibility for naturalization. 17
18. Plaintiff MARIA ESTERVINA PEREZ is a citizen and national of El Salvador. She
18
is a resident of Menlo Park, California. Plaintiff ESTERVINA PEREZ is a victim of the
19 20 infliction of corporal injury and criminal assault. Plaintiff ESTERVINA PEREZ reported
21 these crimes to the Menlo Park Police Department, and the perpetrator was arrested
22 and prosecuted as a result. On or about May 4, 2004, a San Mateo County deputy

23 district attorney certified that plaintiff ESTERVINA PEREZ possesses information

24 concerning this criminal activity and was being helpful to the prosecution of the

25 perpetrator. She is in all other respects statutorily eligible for a U visa. On or about July

26 28, 2004, plaintiff ESTERVINA PEREZ presented defendants a written request for lawful
27 status in accordance with the Crime Victims Act. On or about October 22, 2004, 28
defendants granted plaintiff ESTERVINA PEREZ deferred action, but refused to adjudicate

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1 her eligibility for a U visa because they had yet to implement the U visa program. But

2 for defendants’ refusal to grant plaintiff ESTERVINA PEREZ a U visa, she would have

3 accrued three years of continuous physical presence in the United States following
4 receipt of a U visa on or before October 22, 2007, and since then would have been 5 eligible for lawful permanent residence. On or about October 25, 2007, plaintiff 6
ESTERVINA PEREZ again applied for a U visa in accordance with defendants’ regulations.
7
Defendants have yet to issue plaintiff ESTERVINA PEREZ a U visa, and as a direct and
8 9 proximate result of defendants’ non-feasance as alleged herein, plaintiff ESTERVINA
10 PEREZ, among other injuries, continues to be denied lawful permanent residence and
11 accrued time towards eligibility for naturalization.

12

19. Plaintiff FRANCISCA RAMIREZ ALVAREZ is a citizen and national of Mexico.

13 She is a resident of Louisville, Kentucky. She is a victim of domestic violence and is

14 statutorily eligible for the issuance of a U visa. On or about March 19, 2002, January 2,
15 2003, and February 1, 2004, she petitioned defendants for benefits under the Crime 16 Victims Act. On or about October 17, 2003, defendants granted plaintiff RAMIREZ 17
ALVAREZ deferred action, but refused to adjudicate her eligibility for a U visa because
18
they had yet to implement the U visa program. But for defendants’ refusal to grant
19 20 plaintiff RAMIREZ ALVAREZ a U visa, she would have accrued three years in U visa
21 status on or before October 17, 2006, and since then would have been eligible for lawful
22 permanent residence. Defendants have yet to issue plaintiff RAMIREZ ALVAREZ a U visa,

23 and as a direct and proximate result of defendants’ non-feasance as alleged herein,

24 plaintiff RAMIREZ ALVAREZ, among other injuries, continues to be denied lawful

25 permanent residence and accrued time towards eligibility for naturalization.

26

20. Plaintiff MARIA HERNANDEZ is a citizen of Trinidad and Tobago. She was

27 born September 18, 1959, and resides with her daughters, Marlinda Clarke and Martina 28
Clarke, in Brooklyn, New York. Plaintiff HERNANDEZ is a victim of felony assault, who

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1 cooperated with law enforcement in the investigation of the crime against her and is in

2 all other respects statutorily eligible for the issuance of a U visa. On or about December

3 18, 2006, plaintiff HERNANDEZ petitioned the USCIS for benefits under the Crime
4 Victims Act for herself as well as her daughters. On or about April 26, 2007, defendants 5 granted plaintiff HERNANDEZ and her two daughters deferred action, but refused to 6
issue her or her daughters U visas because they had yet to implement the U visa
7
program. On December 22, 2006, plaintiff HERNANDEZ’S daughter, plaintiff MARLINDA
8 9 CLARKE, turned 21 years of age and as a direct and proximate result of defendants’
10 delay as alleged herein, is now deemed ineligible for a derivative U visa. On February 8,
11 2008, defendants notified Plaintiff HERNANDEZ that her daughter plaintiff MARLINDA

12 CLARKE’S application for a U visa was being returned to Plaintiff HERNANDEZ because a

13 child derivative over the age of 21 is ineligible for derivative status. Among other

14 injuries, plaintiff HERNDANDEZ is being denied her right to family integrity because her

15 daughter, plaintiff MARLINDA CLARKE, now resides in the United States without

16 documented authorization to do so. But for defendants’ refusal to grant plaintiff
17
HERNANDEZ and her daughters U visas, plaintiff HERNANDEZ would now enjoy the
18
undisturbed care, companionship and support of her daughter, plaintiff MARLINDA
19

20 CLARKE.

21

21. Plaintiff MARLINDA V. CLARKE is a citizen of Trinidad and Tobago. She was

22 born December 22, 1985, and is the daughter of plaintiff MARIA HERNANDEZ. Plaintiff

23 CLARKE resides with her mother in Brooklyn, New York. Plaintiff CLARKE’s mother is a

24 victim of particularly serious crime, who cooperated with law enforcement in the

25 investigation of the crime against her and is in all other respects statutorily eligible for

26 the issuance of a U visa. On or about December 18, 2006, plaintiff CLARKE petitioned the
27 USCIS for benefits under the Crime Victims Act. Pursuant to 8 U.S.C. § 28
1101(a)(15)(U)(ii)(II), plaintiff CLARKE was then eligible for “derivative” U visa status as

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1 a child who is accompanying or following to join her mother. On or about April 26,

2 2007, defendants granted plaintiff CLARKE deferred action, but refused to issue her a U

3 visa because they had yet to implement the U visa program. But for defendants’ refusal
4 to grant plaintiff CLARKE a U visa, she would have accrued time toward eligibility for 5 lawful permanent residence from April 26, 2006, onward. Among other injuries, 6
plaintiff CLARKE continues to be denied accrued time towards eligibility for lawful
7
permanent residence and naturalization. On December 22, 2006, plaintiff CLARKE
8 9 turned 21 years of age. On or about February 8, 2008, as a direct and proximate result of
10 defendants’ delay as alleged herein, defendants declared plaintiff CLARKE ineligible for
11 a derivative U visa solely because the had turned 21.

12

22. Plaintiff PATRICIA GARCIA is a citizen of Mexico. She was born September 16,

13 1986. Plaintiff GARCIA resides in Hayward, California. Plaintiff GARCIA’s mother is a

14 victim of particularly serious crime, who cooperated with law enforcement in the
15 investigation of the crime against her and is in all other respects statutorily eligible for 16 the issuance of a U visa. On or about July 18, 2007, defendant USCIS granted plaintiff 17
GARCIA interim relief based on her prima facie eligibility for benefits under the Crime
18
Victims Act. Pursuant to 8 U.S.C. § 1101(a)(15)(U)(ii)(II), plaintiff GARCIA was then
19 20 eligible for “derivative” U visa status as a child who is accompanying or following to
21 join her mother. Defendants refused to issue plaintiff GARCIA a U visa because they had
22 yet to implement the U visa program. But for defendants’ refusal to grant plaintiff

23 GARCIA a U visa, she would have accrued time toward eligibility for lawful permanent

24 residence from April 26, 2006, onward. Among other injuries, plaintiff GARCIA

25 continues to be denied accrued time towards eligibility for lawful permanent residence

26 and naturalization. On September 16, 2007, plaintiff GARCIA turned 21 years of age and
27 as a direct and proximate result of defendants’ delay as alleged herein, is now deemed 28
ineligible for a derivative U visa.

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1

23. Plaintiff BLANCA ROSSELL is a citizen and national of Mexico. Plaintiff

2 ROSSELL resides in Sunnyvale, California. Plaintiff ROSSELL’s daughter, Georgette

3 Fernandez, was born April 25, 1980, is a victim of rape committed in the United States,
4 cooperated with law enforcement in the investigation of the crime against her, and is in 5 all other respects statutorily eligible for the issuance of a U visa. Defendant USCIS 6
granted plaintiff ROSSELL interim relief based on her prima facie eligibility for benefits
7
under the Crime Victims Act. Pursuant to 8 U.S.C. § 1101(a)(15)(U)(ii)(I), plaintiff
8 9 ROSSELL was then eligible for “derivative” U visa status as a parent who is
10 accompanying or following to join a child. Defendants refused to issue plaintiff ROSSELL
11 a U visa because they had yet to implement the U visa program. But for defendants’

12 refusal to grant plaintiff ROSSELL a U visa, she would have accrued time toward

13 eligibility for lawful permanent residence from April 26, 2006, onward. Among other

14 injuries, plaintiff GARCIA continues to be denied accrued time towards eligibility for

15 lawful permanent residence and naturalization. On September 16, 2007, plaintiff

16 ROSSELL’s daugher, Georgette Fernandez, turned 21 years of age and as a direct and
17
proximate result of defendants’ delay as alleged herein, plaintiff ROSSELL is now
18
deemed ineligible for a derivative U visa.
19

20

24. Plaintiff IRMA MORENO SANVICENTE is a citizen and national of Mexico. She is

21 a resident of Brooklyn, New York. She is a victim of criminal domestic violence,

22 cooperated with law enforcement, and is in all other respects statutorily eligible for a U

23 visa. On or about January 17, 2006, New York County District Attorney’s Office

24 executed a certification that plaintiff MORENO SANVICENTE had been helpful to the

25 investigation or prosecution of the crime committed against her. On or about August 19,

26 2005, plaintiff MORENO SANVICENTE presented defendants with a written request for
27 relief under the Crime Victims Act. On November 15, 2005, defendants refused to grant 28
plaintiff MORENO SANVICENTE a U visa because they had yet to implement the U visa

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1 program, and denied her interim relief because her law enforcement certification was

2 not signed within six months of her request. Plaintiff MORENO SANVICENTE sought and

3 obtained a fresh U certification, and on or about February 3, 2006, presented defendants
4 with a second request for benefits under the Crime Victims Act. On or about February 9, 5 2006, defendants granted plaintiff MORENO SANVICENTE interim relief, but denied her a 6
U visa because they had yet to implement the U visa program. As a direct and
7
proximate result of (i) defendants’ failure to timely implement the U visa program; and
8 9 (ii) policy and practice of requiring that law enforcement certifications be executed no
10 more than six months prior to filing for interim relief and/or U visas, plaintiff MORENO
11 SANVICENTE is being denied accrued time toward eligibility for lawful permanent

12 residence for the period from November 15, 2005, to February 9, 2006.

13

25. Plaintiff MARIA LUISA ARROYO TORRES is a citizen and national of Mexico.

14 She is a resident of Mercedes, Texas. She is a victim of assault and domestic violence
15 and is statutorily eligible for the issuance of a U visa. On or about July 14, 2006, she 16 petitioned the USCIS for benefits under the Crime Victims Act. Plaintiff TORRES 17
submitted her application with a U certification signed on August 5, 2005 by an
18
assistant criminal district attorney of Hidalgo County, Texas, an official who was
19 20 neither the head of a law enforcement agency nor designated by the head of a law
21 enforcement agency to execute law enforcement certifications on behalf of the agency.
22 On or about December 13, 2006, defendants denied her request for a U visa because

23 they had yet to implement the U visa program and denied her interim relief because her

24 U certification had not been executed within six months of her request. On or about

25 January 30, 2007, plaintiff ARROYO TORRES obtained a fresh law enforcement

26 certification, and on or about March 2, 2007, reapplied for benefits under the Crime

27 Victims Act. On or about April 17, 2007, defendants issued her interim relief, but 28
refused to grant plaintiff ARROYO TORRES a U visa because they had yet to implement

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1 the U visa program. As a direct and proximate result of (i) defendants’ failure to timely

2 implement the U visa program; and (ii) policy and practice of requiring that law

3 enforcement certifications be executed no more than six months prior to filing for
4 interim relief and/or U visas, plaintiff ARROYO TORRES is being denied accrued time 5 toward eligibility for lawful permanent residence for the period from December 13, 6
2006, to April 17, 2007.
7
26. Plaintiff ALMA ROSA PADILLA DE HERNANDEZ is a citizen and national of
8 9 Mexico. She is a resident of Sylmar, California, and the victim of criminal domestic
10 violence. She is statutorily eligible for a U visa. On or about March 23, 2007, she
11 petitioned the USCIS for benefits under the Crime Victims Act. In support of her

12 application plaintiff PADILLA submitted a law enforcement certification executed on

13 May 19, 2006, by a Deputy Sheriff of the County of Los Angeles, an official who was

14 neither the head of a law enforcement agency nor designated by the head of a law
15 enforcement agency to execute law enforcement certifications on behalf of the agency. 16 On or about May 24, 2007, defendants denied plaintiff PADILLA deferred action solely 17
because her law enforcement certification had been signed more than six months prior
18
to her requesting benefits under the Crime Victims Act. Defendants refused to issue
19 20 plaintiff PADILLA a U visa because, as alleged herein, they had yet to implement the U
21 visa program. Plaintiff PADILLA remains ineligible for a U visa pursuant to defendants’
22 regulations because her law enforcement certification (i) is more than six months old;

23 (ii) was not executed by the head of a law enforcement agency or a subordinate

24 specifically designated by the head of the agency to execute law enforcement

25 certifications; and (iii) does not meet the requirements of defendants’ interim

26 regulations as to form and substance, including that law enforcement certifications be
27 executed on CIS Form I-918 Supplement B. As a direct and proximate result of 28
defendants’ policy and practice of requiring that law enforcement certifications be

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1 executed no more than six months prior to filing for interim relief and/or U visas,

2 plaintiff PADILLA would have accrued time toward eligibility for lawful permanent

3 residence from May 24, 2007, onward. Among other injuries, as a direct and proximate
4 result of defendants’ challenged policies and practices, plaintiff PADILLA continues to be 5 denied a U visa and accrued time towards eligibility for lawful permanent residence 6
and naturalization.
7
27. Plaintiff ROSA AMEZQUITA RAZO is a citizen and national of Mexico. She is a
8 9 resident of Fort Mill, South Carolina. Plaintiff AMEZQUITA RAZO is the victim of
10 criminal transporting of aliens resulting in serious bodily injury or death, a crime
11 investigated by defendants. Plaintiff AMEZQUITA RAZO appeared as a witness for the

12 prosecution, and on or about October 26, 2007, the perpetrator of the crime against

13 plaintiff AMEZQUITA RAZO was convicted. Thereafter, plaintiff AMEZQUITA RAZO

14 repeatedly requested that the United States Customs and Border Protection execute a
15 certification attesting to her having been helpful to federal authorities investigating or 16 prosecuting criminal activity. Defendants refused to execute the requested certification. 17
Said refusal was arbitrary and capricious and an abuse of discretion. On information
18
and belief, defendants’ refusal to certify plaintiff AMEZQUITA RAZO’s having been
19 20 helpful to their investigating or prosecuting criminal activity was pursuant to a policy
21 and practice against issuing any such certifications regardless of the merits of any
22 individual request. Plaintiff AMEZQUITA RAZO is in all other respects eligible for a U

23 visa. As a direct and proximate result of defendants’ policy and practice against issuing

24 such certifications, plaintiff AMEZQUITA RAZO has no means to seek a U visa.

25

28. Plaintiff ANTONIO PEREZ GARCIA is a citizen and national of Mexico. He is a

26 resident of Avenal, California. Plaintiff PEREZ GARCIA is the victim of criminal
27 transporting of aliens resulting in serious bodily injury or death, a crime investigated by 28
defendants. Plaintiff PEREZ GARCIA appeared as a witness for the prosecution, and on

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1 or about October 26, 2007, the perpetrator of the crime against plaintiff PEREZ GARCIA

2 was convicted. Thereafter, plaintiff PEREZ GARCIA repeatedly requested that the United

3 States Customs and Border Protection execute a certification attesting to his having been
4 helpful to federal authorities investigating or prosecuting criminal activity. Defendants 5 refused to execute the requested certification. Said refusal was arbitrary and capricious. 6
On information and belief, defendants’ refusal to certify plaintiff PEREZ GARCIA’s
7
having been helpful to their investigating or prosecuting criminal activity was pursuant
8 9 to a policy and practice against issuing any such certifications regardless of the merits of
10 any individual request. Plaintiff PEREZ GARCIA is in all other respects eligible for a U
11 visa. As a direct and proximate result of defendants’ policy and practice against issuing

12 such certifications, plaintiff PEREZ GARCIA has no means to seek a U visa.

13

29. Plaintiff VERONICA REYES BONILLA is a citizen and national of Mexico. She is

14 a resident of Rialto, California. Plaintiff REYES BONILLA is the victim of criminal
15 transporting of aliens resulting in serious bodily injury or death, a crime investigated by 16 defendants. Plaintiff REYES BONILLA appeared as a witness for the prosecution, and on 17
or about October 26, 2007, the perpetrator of the crime against plaintiff REYES BONILLA
18
was convicted. Thereafter, plaintiff REYES BONILLA repeatedly requested that the United
19 20 States Customs and Border Protection execute a certification attesting to her having
21 been helpful to federal authorities investigating or prosecuting criminal activity.
22 Defendants refused to execute the requested certification. Said refusal was arbitrary and

23 capricious and abuse of discretion. On information and belief, defendants’ refusal to

24 certify plaintiff REYES BONILLA’s having been helpful to their investigating or

25 prosecuting criminal activity was pursuant to a policy and practice against issuing any
26 such certifications regardless of the merits of any individual request. Plaintiff REYES 27 BONILLA is in all other respects eligible for a U visa. As a direct and proximate result of 28

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1 defendants’ policy and practice against issuing such certifications, plaintiff REYES

2 BONILLA has no means to seek a U visa.

3

29.1. Plaintiff MELCHOR VARGAS SILVA is a citizen and national of Mexico. He is a

4 resident of Hayward, California, and the victim of felonious assault perpetrated by a
5 U.S. Border Patrol agent near Tucson, Arizona on May 15, 2006. Following this assault, 6
plaintiff VARGAS SILVA cooperated with defendants’ investigation of the crime
7
committed against him. In December 2006, plaintiff VARGAS SILVA requested
8 9 defendants issue him a law enforcement certification so that he could apply for benefits
10 under the Crime Victims Act. On or about March 20, 2007, defendants refused to issue

11 plaintiff VARGAS SILVA a law enforcement certification. Plaintiff VARGAS SILVA is in all

12 other respects eligible for a U visa, and on or about January 2, 2007, he petitioned

13 defendants for benefits under the Crime Victims Act despite his lacking a law

14 enforcement certification. On or about March 7, 2007, defendants refused to issue
15 plaintiff VARGAS SILVA interim relief because he had no law enforcement certification. 16 Defendants’ refusal to issue plaintiff VARGAS SILVA a law enforcement certification was 17
and continues to be arbitrary, capricious, and an abuse of discretion.
18
30. Plaintiff SERGIO BUCIO PEREZ is a citizen and national of Mexico and the
19 20 minor child of plaintiff SANDRA BUCIO, whom he sues through as his next friend.
21 Plaintiffs SERGIO BUCIO PEREZ resides with his mother in San Francisco, California.
22 Pursuant to 8 U.S.C. § 1101(a)(15)(U)(ii)(II), plaintiff SERGIO BUCIO PEREZ is eligible for a

23 derivative U visa as a child accompanying or following to join his mother. On or about

24 February 1, 2004, plaintiffs SERGIO BUCIO PEREZ presented defendants with written

25 request for lawful status under the Crime Victims Act. On or about June 3, 2004,

26 defendants granted plaintiff SERGIO BUCIO PEREZ deferred action, but refused to grant
27 his a U visa because they had yet implement the U visa program. But for defendants’ 28
refusal to grant plaintiff SERGIO BUCIO PEREZ a U visa, he would have accrued three

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1 years in U visa status on or before June 3, 2007, and since that time would have been

2 eligible for lawful permanent residence. On or about November 2, 2007, plaintiff SERGIO

3 BUCIO PEREZ again applied for a U visa in accordance with defendants’ regulations.
4 Defendants have yet to issue plaintiff SERGIO BUCIO PEREZ a U visa. As a direct and 5 proximate result of defendants’ actions as alleged herein, plaintiff SERGIO BUCIO PEREZ, 6
among other injuries, continue to be denied lawful permanent residence and accrued
7
time towards eligibility for lawful permanent residence and naturalization. Plaintiff
8 9 SERGIO BUCIO PEREZ is statutorily entitled to employment authorization, but pursuant
10 to defendants’ regulation, 8 C.F.R. § 214.14(f)(7), he must apply separately for
11 documentation of such authorization, a requirement defendants do not impose on

12 principal U visa recipients notwithstanding that 8 U.S.C. § 1184(p)(3)(B) grants principal

13 and derivative U visa holders identical rights to employment authorization.

14

31. Plaintiff ANDRES BUCIO PEREZ is a citizen and national of Mexico and the

15 minor child of plaintiff SANDRA BUCIO, whom he sues through as his next friend.
16 Plaintiffs ANDRES BUCIO PEREZ resides with his mother in San Francisco, California. 17
Pursuant to 8 U.S.C. § 1101(a)(15)(U)(ii)(II), plaintiff ANDRES BUCIO PEREZ is eligible for
18
a derivative U visa as a child accompanying or following to join his mother. On or
19 20 about February 1, 2004, plaintiffs ANDRES BUCIO PEREZ presented defendants with
21 written request for lawful status under the Crime Victims Act. On or about June 3, 2004,

22 defendants granted plaintiff ANDRES BUCIO PEREZ deferred action, but refused to grant

23 his a U visa because they had yet implement the U visa program. But for defendants’

24 refusal to grant plaintiff ANDRES BUCIO PEREZ a U visa, he would have accrued three

25 years in U visa status on or before June 3, 2007, and since that time would have been

26 eligible for lawful permanent residence. On or about November 2, 2007, plaintiff
27 ANDRES BUCIO PEREZ again applied for a U visa in accordance with defendants’ 28
regulations. Defendants have yet to issue plaintiff ANDRES BUCIO PEREZ a U visa. As a

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1 direct and proximate result of defendants’ actions as alleged herein, plaintiff ANDRES

2 BUCIO PEREZ, among other injuries, continue to be denied lawful permanent residence

3 and accrued time towards eligibility for lawful permanent residence and naturalization.

4 Plaintiff ANDRES BUCIO PEREZ is statutorily entitled to employment authorization, but

5 pursuant to defendants’ regulation, 8 C.F.R. § 214.14(f)(7), he must apply separately for 6
documentation of such authorization, a requirement defendants do not impose on
7
principal U visa recipients notwithstanding that 8 U.S.C. § 1184(p)(3)(B) grants principal
8
9 and derivative U visa holders identical rights to employment authorization.

10

32. Defendant Michael CHERTOFF is the Secretary of the United States

11 Department of Homeland Security. Defendant CHERTOFF is charged with the

12 implementation of the Immigration and Nationality Act, 8 U.S.C. §§ 1101 et seq., and

13 with the administration of the United States Citizenship and Immigration Services,

14 United States Immigration and Customs Enforcement, and United States Customs and

15 Border Protection. He is sued in his official capacity.

16

33. Defendant UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES

17
(“USCIS”) is a bureau of the U.S. Department of Homeland Security. USCIS is charged

18

with the implementation of the Immigration and Nationality Act, 8 U.S.C. §§ 1101 et
19

20 seq., including the U visa provisions, as well as enactments of Congress requiring the

21 promulgation of implementing regulations pursuant to which plaintiffs and those

22 similarly situated may have their eligibility for U visas lawfully determined.

23

IV

24

CLASS ALLEGATIONS

25

34. Plaintiffs bring this action pursuant to Fed.R.Civ.Proc. Rule 23(a) and 23(b)(2)

26 on behalf of themselves and the following classes of similarly situated persons:

27

28

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1

1) All persons granted deferred action more than three years ago based upon

2

their prima facie eligibility for U visas and who have been continuously

3

physically present in the United States thereafter.

4

2) All persons who have been prima facie eligible for derivative U visas

5

pursuant to 8 U.S.C. § 1101(U)(ii), but who are denied such visas because

6
they, or in the case of the parents of immigrant crime victims, their
7
children, attained 21 years of age, or, in the case of siblings of crime
8

9

victims, because they attained 18 years of age, before September 17, 2007.

10

3) All persons denied U visas or interim relief available to persons prima facie

11

eligible for U visas because their law enforcement certifications are not —

12

(i) executed by the “head of the certifying agency, or any person(s) in

13

a supervisory role who has been specifically designated by the

14

head of the certifying agency to issue U nonimmigrant status

15

certifications on behalf of that agency”; and/or

16

(ii) signed by a certifying official within the six months immediately

17
preceding their applying for U visas or interim relief.
18
4) All persons who are the victims of crimes investigated by the Department
19

20

of Homeland Security, its officers, or agents, and who would be prima facie

21

eligible for U visas, but for defendants’ refusal to issue law enforcement

22

certifications pursuant to 8 U.S.C. § 1184(p)(1).

23

5) All persons issued U visas pursuant to 8 U.S.C. § 1101(U)(ii) and who are

24

not automatically issued documentation of their right to be lawfully

25

employed in the United States.

26

35. Members of the proposed classes likely number in the hundreds and are so

27 numerous that joinder of all members is impracticable. The claims of the proposed class

28
representatives and those of the proposed class members raise common questions of

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1 law and fact concerning, inter alia, whether defendants may lawfully deny to

2 individuals who are prima facie eligible for U visas the full rights and privileges that

3 were due them, including U visas and accrual of time towards eligibility for

4 naturalization. These questions are common to the named plaintiffs and to the members
5 of the proposed class because defendants have acted and will continue to act on 6
grounds generally applicable to both the named plaintiffs and proposed class members.
7
The individual named plaintiffs’ claims are typical of the class claims. The named
8 9 plaintiffs will adequately represent all members of the proposed class.

10

36. The prosecution of separate actions by individual members of the classes

11 would create a risk of inconsistent or varying adjudications establishing incompatible

12 standards of conduct for defendants. The application of regulations, standards and

13 procedures is a national function, not a function performed differently in each

14 individual case or in each USCIS district or region. Prosecution of separate actions

15 would create the risk that individual class members will secure court orders that would

16 as a practical matter be dispositive of the claims of other class members not named

17
parties to this litigation, thereby substantially impeding the ability of unrepresented
18
class members to protect their interests.
19

20

37. Defendants, their agents, employees, and predecessors and successors in

21 office have acted or refused to act, and will continue to act or refuse to act, on grounds

22 generally applicable to the class, thereby making appropriate injunctive relief or

23 corresponding declaratory relief with respect to the class as a whole. Plaintiffs will

24 vigorously represent the interests of unnamed class members. All members of the

25 proposed class will benefit by this action. The interests of the plaintiffs and those of the

26 proposed class members are identical. Plaintiffs are represented by counsel associated
27 with non-profit public interest law firms and reputable private firms acting pro bono 28
publico and include attorneys highly experienced in federal class action litigation

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1 involving the rights of foreign nationals, children, and refugees within the United

2 States.

3

V

4

SUBSTANTIVE ALLEGATIONS

5

38. Although the Crime Victims Act set no specific date by which defendants

6
were required to promulgate regulations implementing the U visa program, it vested

7

qualified crime victims and their close family members with an immediate legal right to
8

9 receive U visas and implicitly obliged defendants to confer U visas on qualified crime

10 victims and their close family members without unreasonable delay.

11

39. In the Violence Against Women and Department of Justice Reauthorization

12 Act of 2005, Pub. L. 109-162, 119 Stat. 2960 (2006) (“VAWA Reauthorization Act”),

13 Congress directed defendants to “promulgate regulations to implement” the U visa

14 program “[n]o later than 180 days after the date of enactment of this Act… “ Id. at § 828.
15 The VAWA Reauthorization Act was signed into law on January 5, 2006, and 16 defendants were thereafter under an unambiguous legal duty to promulgate 17
regulations implementing the U visa program no later than July 4, 2006.
18
40. Despite the Crime Victims Act and the VAWA Reauthorization Act,
19 20 defendants failed to promulgate regulations implementing the U visa program until 21 September 17, 2007. Even then, defendants failed to issue regulations regarding the
22 procedures for plaintiffs and class members to apply for adjustment of status. On

23 information and belief, defendants have yet to issue anyone an actual U visa, nor have

24 they conferred lawful permanent residence on individuals whom defendants

25 recognized as prima facie eligible for U visas more than three years ago and who have
26 since remained continuously physically present in the United States. As a direct and 27 proximate result of defendants’ delay in implementing the U visa program, statutorily 28

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1 eligible persons, including the individual named plaintiffs herein were denied any

2 means to secure U visas and related benefits, including lawful permanent residence.

3

41. Instead of issuing U visas, defendants granted persons who were prima facie

4 eligible for such visas “interim” relief. Known as “deferred action,” such relief is
5 nowhere recognized by the Immigration and Nationality Act, but was rather created by 6
administrative fiat. Deferred action is no more than an exercise of prosecutorial
7
discretion not to seek a crime victims’ immediate deportation or removal. Deferred
8 9 action confers no cognizable legal status and simply defers an individual’s deportation

10 or removal from the United States. Crime victims to whom defendants issued deferred

11 action were not permitted to work or travel incident to their status, but were instead

12 required to apply separately for work and travel authorization, which defendants

13 granted or withheld as a matter of discretion. During the interim relief program,

14 defendants’ fee for processing an application for employment authorization or an

15 annual renewal of employment authorization was $340.00.

16

42. In contrast, recipients of U visas are entitled to be lawfully employed in the

17
United States, to travel abroad, and to accrue time toward eligibility for lawful
18
permanent residence, and a fortiori, naturalization. All these benefits are incident to U
19

20 visa status: that is, U visa holders do not have to apply separately for any of these

21 benefits or pay fees to have applications for such benefits separately adjudicated, nor

22 could defendants deny U visa holders such benefits in the exercise of discretion.

23

43. Pursuant to 8 U.S.C. § 1255(m), persons granted U visas and who thereafter

24 remain continuously present in the United States for three years are eligible for lawful

25 permanent residence. Plaintiffs ELIZABETH LOPEZ GOMEZ, SANDRA BUCIO,

26 CONSTANTINA CAMPOS, MARIA ESTERVINA PEREZ, FRANCISCA RAMIREZ ALVAREZ,
27 ANDRES BUCIO PEREZ and SERGIO BUCIO PEREZ each received interim relief more than 28
three years ago and has remained physically present in the United States continuously

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1 ever since, yet none has received a U visa or lawful permanent residence. Defendants’

2 delay in implementing the U visa program and ongoing failure to issue regulations on

3 adjustment of status as alleged herein continues to deprive said plaintiffs of U visas and

4 lawful permanent residence.

5

44. 8 U.S.C. § 1427 requires that applicants for naturalization must “immediately

6
preceding the date of filing his application naturalization [have] resided continuously,

7

after being lawfully admitted for permanent residence, within the United States for at
8

9 least five years …” Persons granted interim relief do not accrue time toward eligibility

10 for naturalization. As a direct and proximate result of defendants’ unlawful actions as

11 alleged herein, crime victims, including plaintiffs ELIZABETH LOPEZ GOMEZ, SANDRA

12 BUCIO, CONSTANTINA CAMPOS, MARIA ESTERVINA PEREZ, FRANCISCA RAMIREZ

13 ALVAREZ, ANDRES BUCIO PEREZ and SERGIO BUCIO PEREZ, all of whom have spent more

14 than three years in deferred action status while being unlawfully denied U visas and, a
15 fortiori, timely adjustment to lawful permanent residence, are being denied accrued time 16 toward eligibility for naturalization. 17
45. Although defendants required crime victims to obtain law enforcement
18
certifications in order to qualify for interim relief, defendants’ interim requirements for
19 20 such certifications were far less exacting than those their regulations now impose.
21 Consequently, law enforcement certifications plaintiffs and their proposed class
22 members obtained over the past seven years do not satisfy the requirements of the new

23 regulations. Defendants’ regulations permit persons who received deferred action to

24 support their U visa applications with law enforcement certifications obtained prior to

25 defendants’ promulgating the regulations. However, persons who were not

26 affirmatively granted interim relief must obtain new certifications satisfying all the new
27 requirements of the interim regulations. New certifications are difficult, and very often 28
impossible, to obtain. But for defendants’ nonfeasance, plaintiffs and their class

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1 members would have timely known the requirements of a law enforcement certification

2 and been in a far better position to obtain acceptable certifications while the

3 investigations and prosecutions of the crimes committed against them were still fresh.

4

46. Pursuant to 8 U.S.C. § 1101(a)(15)(U)(ii), the spouses, children, and if the

5 applicant is under 21, the unmarried siblings under 18 of crime victims who are granted 6
U visas are entitled to derivative U visas. Id. 8 U.S.C. § 1101(b)(1) defines the term
7
“child” as “an unmarried person under twenty-one years of age …” Therefore, children
8
9 eligible for derivative U visas, including plaintiffs MARLINDA V. CLARKE and PATRICIA

10 GARCIA, become ineligible for such visas if they do not receive them prior to attaining

11 21 years of age. As a direct and proximate result of defendants’ failure to issue U visas,

12 persons who were statutorily eligible for derivative U visas, including plaintiffs CLARKE

13 and GARCIA, but who turned 21 years old prior to defendants’ issuing U visa

14 regulations are deemed ineligible for U visas and attendant benefits, including

15 eligibility for lawful permanent residence three years after having been granted U visas.

16

47. Pursuant to 8 U.S.C. § 1101(a)(15)(U)(ii), the parents of young crime victims

17
who receive U visas are eligible for derivative U visas. Id. 8 U.S.C. § 1101(b)(1) defines

18

the term “child” as “an unmarried person under twenty-one years of age …” Therefore,
19

20 parents eligible for derivative U visas, including plaintiff BLANCA ROSSELL, become

21 ineligible for such visas if they do not receive them prior to their children’s attaining 21

22 years of age. As a direct and proximate result of defendants’ failure to issue U visas,

23 parents who were statutorily eligible for derivative U visas, but whose children turned

24 21 years old prior to defendants’ issuing U visa regulations, are deemed ineligible for U

25 visas and attendant benefits, including eligibility for lawful permanent residence three

26 years after having been granted U visas.

27

48. Pursuant to 8 U.S.C. § 1184(p), applicants must support their applications for

28
U visas with “a certification from a Federal, State, or local law enforcement official,

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1 prosecutor, judge, or other Federal, State, or local authority investigating criminal

2 activity …. This certification may also be provided by an official of the Service whose

3 ability to provide such certification is not limited to information concerning

4 immigration violations….” Obtaining a law enforcement certification is the single most
5 difficult part of preparing a U visa application. Many local law enforcement officials are 6
unfamiliar with the U visa statute, are overburdened with other responsibilities, and are
7
reluctant to issue law enforcement certifications in the first instance, much less months
8 9 after their investigations or prosecutions have closed.

10

49. Although neither 8 U.S.C. § 1184(p) nor any other statute requires that a law

11 enforcement certification be signed within any specific time prior to the presentation of

12 a petition for a U visa, defendants’ regulation, 8 C.F.R. § 214.14(c)(2)(i), requires that U

13 visa applicants furnish a law enforcement certification signed no more than six months

14 prior to their filing a U visa application. It is often difficult or impossible for crime
15 victims to prepare and file an application for a U visa within six months. Immigrant 16 crime victims are often physically or psychologically incapacitated as a result of the 17
crimes against them, and their obtaining identity and other required documents from
18
remote areas in foreign countries can often consume more than six months. Most
19 20 immigrant crime victims are indigent and have few free or low cost legal services
21 available to them. Organizations that provide free or low cost legal services to
22 immigrant crime victims, including plaintiff VOCES UNIDAS, have too few resources to

23 serve all who require legal aid, and the press of other business often prevents them

24 from devoting significant additional resources to a U visa case until after the crucial law

25 enforcement certification has been obtained.

26

50. Although neither 8 U.S.C. § 1184(p) nor any other statute requires that a law

27 enforcement certification be signed by the head of the certifying agency or his or her

28
specific designee, 8 C.F.R. § 214.14(a)(3) requires that such certifications be executed by

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1 the “head of the certifying agency, or any person(s) in a supervisory role who has been

2 specifically designated by the head of the certifying agency to issue U nonimmigrant

3 status certifications on behalf of that agency.” Many local law enforcement heads are

4 largely unfamiliar with the U visa statute, are too overburdened with other

5 responsibilities to issue law enforcement certifications themselves, and have not and

6
will not specifically designate any other person in a supervisory role to issue U
7
nonimmigrant status certifications on behalf of that agency.
8

9

51. 8 C.F.R. § 214.14(c) provides, “A petitioner who received interim relief is not

10 required to submit initial evidence with Form I-918 if he or she wishes to rely on the law

11 enforcement certification and other evidence that was submitted with the request for

12 interim relief.” In comments to the interim regulations defendants explain, “If a

13 petitioner requested and received interim relief prior to the effective date of this rule,

14 USCIS will consider the evidence submitted to meet the certification requirements for

15 interim relief purposes in lieu of Form I-918, Supplement B..” However, persons who
16 obtained law enforcement certifications prior to defendants’ promulgating U visa 17
regulations but were not affirmatively granted deferred action are ineligible for U visas
18
because their law enforcement certifications were not executed by the head of the
19 20 certifying agency or his or her specific designee.

21

52. 8 U.S.C. § 1184(p) authorizes defendants to issue law enforcement

22 certifications to crime victims who cooperate with them in the investigation or

23 prosecution of crime. Despite Congress’s conferring certification authority on them,

24 defendants have failed to adopt any regulation or guidelines on when they will issue

25 law enforcement certifications to cooperating crime victims. On information and belief,
26 defendants uniformly and arbitrarily refuse to issue law enforcement certifications to 27 crime victims, including plaintiffs ROSA AMEZQUITA RAZO, ANTONIO PEREZ GARCIA, 28

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1 and VERONICA REYES BONILLA, no matter how serious the crimes against them and how

2 much they help defendants’ investigating or prosecuting serious crime.

3

53. Although the Crime Victims Act confers derivative U visas on the immigrant

4 parents of immigrant crime victims who receive U visas, the immigrant parents of
5 United States citizen crime victims are ineligible for derivative U visas. Stated 6
otherwise, immigrant crime victims are entitled to secure lawful status for their parents
7
and remain lawfully in the United States as a family unit; U.S. citizen crime victims
8 9 enjoy no such rights.

10

54. Pursuant to 8 U.S.C. § 1184(p)(3)(B), defendants must, “during the period

11 [they are] in lawful temporary resident status … provide [all U visa recipients] with

12 employment authorization.” Section 1184(p)(3)(B) grants crime victims who receive U

13 visas and their close family members who receive derivative U visas identical rights

14 respecting employment authorization. 8 C.F.R. § 214.14(f)(7), however, provides that

15 derivative U visa recipients, including plaintiffs ANDRES BUCIO and SERGIO BUCIO,

16 must apply separately, together with fee of $340.00, for documentation of employment
17
authorization, a requirement that defendants do impose on principal U visa recipients.
18
VI
19

20

IRREPARABLE INJURY

21

55. Plaintiffs and those similarly situated are suffering and will continue to suffer

22 irreparable injury unless this Court orders relief as prayed for herein. Such injury

23 includes, inter alia, deprivation of due process and equal protection through

24 withholding of timely U visas, loss of eligibility for derivative U visas, and loss of

25 accrued time toward eligibility for lawful permanent residence and naturalization.
26 Damages cannot adequately address the injuries suffered by plaintiffs and their 27 proposed class members, including the inability to legalize their immigration status in a 28

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1 manner made available by Congress and the loss of ancillary benefits available to U visa

2 holders.

3

VII

4

FIRST CLAIM FOR RELIEF

5

[Continuing injury from failure to implement U visa program and issue U visas]

6
56. Plaintiffs incorporate by this reference the allegations set out in ¶¶ 1-55,
7

inclusive, above as though fully realleged here.
8

9

57. As a direct and proximate result of defendants’ failure to timely implement 8

10 U.S.C. § 1101(a)(15)(U), and their ongoing failure to issue regulations for adjustment of

11 status of U visa holders, plaintiffs and their proposed class members have suffered and

12 continue to suffer the following injuries:

13

a) Principal U visa recipients who have had deferred action for more than

14

three years have been and continue to be denied lawful permanent

15

residence and are being precluded from accruing time toward eligibility

16

for naturalization; and

17
b) crime victims who obtained law enforcement certifications prior to
18
September 17, 2007, but were not issued interim relief are deemed
19

20

ineligible for U visas if they are unable to obtain new certifications

21

meeting the requirements of defendants’ regulations.

22

58. Defendants’ failure to implement 8 U.S.C. § 1101(a)(15)(U) until September

23 17, 2007, continuing failure to issue U visas to crime victims and their close family

24 members lawfully entitled to such status, and failure to issue lawful permanent resident

25 regulations or status to persons who have remained physically present in the United

26 States continuously since receiving interim relief are agency actions unlawfully
27 withheld or unreasonably delayed, arbitrary, capricious, an abuse of discretion, 28
otherwise not in accordance with law, and violative of (i) the Victims Protection Act of

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1 2000, Pub. L. No. 106-386, Div. A, 114 Stat. 1464 (2000), codified at, inter alia, 8 U.S.C. §§

2 1101(a)(15)(U) and 1255(m); (ii) the Immigration and Nationality Act, 8 U.S.C. § 1103;

3 (iii) the Violence Against Women and Department of Justice Reauthorization Act of

4 2005, Pub. L. 109-162, 119 Stat. 2960 (2006); (iv) the Administrative Procedure Act, §§ 5

5 U.S.C. §§ 551 et seq.; and (v) the due process clause and equal protection guarantee of

6
the Fifth Amendment to the United States Constitution.
7
VII
8

9

SECOND CLAIM FOR RELIEF

10

[Denial of derivative U visas to persons eligible during seven year delay period ]

11

59. Plaintiffs incorporate by this reference the allegations set out in ¶¶ 1-55,

12 inclusive, above as though fully realleged here.

13

60. As a direct and proximate result of defendants’ failure to timely implement 8

14 U.S.C. § 1101(a)(15)(U), plaintiffs and their proposed class members have suffered and

15 continue to suffer the following injuries:

16

a) immigrant crime victims’ children who were once statutorily eligible for

17
derivative U visas are deemed ineligible for such visas if they turned 21
18
years of age prior to September 17, 2007; and
19

20

b) crime victims’ parents who were once statutorily eligible for derivative U

21

visas are deemed ineligible for such visas if their children turned 21 years

22

of age prior to September 17, 2007; and

23

c) crime victims’ sibilings who were once statutorily eligible for derivative U

24

visas are deemed ineligible for such visas if the crime victim turned 21

25

years of age prior to September 17, 2007, or the sibling turned 18 years of

26

age prior to September 17, 2007.

27

61. Defendants’ (a) deeming immigrant crime victims’ children who were once

28
statutorily eligible for derivative U visas ineligible for such visas because they turned 21

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1 years of age prior to September 17, 2007; (b) deeming crime victims’ parents who were

2 once statutorily eligible for derivative U visas ineligible for such visas because their

3 children turned 21 years of age prior to September 17, 2007; and (c) deeming crime
4 victims’s siblings who were once statutorily eligible for derivative U visas ineligible for 5 such visas because they turned 18 years of age or because the crime victims turned 21 6
years of age, prior to September 17, 2007, are a direct and proximate result of agency
7
action unlawfully withheld or unreasonably delayed, are arbitrary, capricious, an abuse
8 9 of discretion, and otherwise not in accordance with law, and are violative of (i) the
10 Victims Protection Act of 2000, Pub. L. No. 106-386, Div. A, 114 Stat. 1464 (2000), codified
11 at, inter alia, 8 U.S.C. §§ 1101(a)(15)(U) and 1255(m); (ii) the Immigration and Nationality

12 Act, 8 U.S.C. § 1103; (iii) the Violence Against Women and Department of Justice

13 Reauthorization Act of 2005, Pub. L. 109-162, 119 Stat. 2960 (2006); (iv) the

14 Administrative Procedure Act, §§ 5 U.S.C. §§ 551 et seq.; and (v) the due process clause

15 and equal protection guarantee of the Fifth Amendment to the United States

16 Constitution. 17
18
19

VIII THIRD CLAIM FOR RELIEF

20 [Imposition of unreasonable requirements for law enforcement certifications without

21

statutory authority]

22

62. Plaintiffs incorporate by this reference the allegations set out in ¶¶ 1-55,

23 inclusive, above as though fully realleged here.

24

63. 8 C.F.R. §§ 214.14(a)(3) (requiring certification be executed by “head of the

25 certifying agency, or any person(s) in a supervisory role who has been specifically

26 designated by the head of the certifying agency to issue U nonimmigrant status
27 certifications on behalf of that agency”); and 214.14(c)(2)(i) (requiring “Form I-918, 28
Supplement B, ‘U Nonimmigrant Status Certification,’ signed by a certifying official

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1 within the six months immediately preceding the filing of Form I-918”), individually

2 and in combination, violate 8 U.S.C. §§ 1101(a)(15)(U) and 1184(p)(1), and deny

3 plaintiffs and those similarly situated due process and equal protection of the laws as

4 guaranteed by the Fifth Amendment of the United States Constitution.

5

IX

6
FOURTH CLAIM FOR RELIEF
7
[Refusal to issue and set standards for issuance of law enforcement certifications]
8

9

64. Plaintiffs incorporate by this reference the allegations set out in ¶¶ 1-55,

10 inclusive, above as though fully realleged here.

11

65. Defendants’ (i) policy and practice to refuse to issue law enforcement

12 certifications to the victims of crimes investigated by the Department of Homeland

13 Security, its officers, or agents, and (ii) failure to publish regulations or otherwise

14 establish procedural and substantive standards for issuing law enforcement

15 certifications to the victims of crimes investigated by the Department of Homeland

16 Security, its officers, or agents, violate (i) the Crime Victims Protection Act, codified at,
17
inter alia, 8 U.S.C. §§ 1101(a)(15)(U) and 1184(p)(1); (ii) the Administrative Procedure
18
Act, §§ 5 U.S.C. §§ 551 et seq.; and (iii) due process and equal protection guarantees of
19

20 the Fifth Amendment of the United States Constitution.

21

X

22

FIFTH CLAIM FOR RELIEF

23

[Denial of equal protection to U.S. citizen crime victims]

24

66. Plaintiffs incorporate by this reference the allegations set out in ¶¶ 1-55,

25 inclusive, above as though fully realleged here.

26

67. 8 U.S.C. §§ 1101(U)(i)(III) in conjunction with 1184(p) operate to deny U visa

27 eligibility to the immigrant parents of United States citizen children who are the victims

28
of crimes and who or whose parents cooperated with law enforcement agencies in the

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1 investigation or prosecution of such crimes, while granting such benefit to the

2 immigrant parents of undocumented and lawful permanent resident children. This

3 unequal treatment is irrational and violates the equal protection guarantee of the Fifth

4 Amendment to the United States Constitution.

5

XI

6
SIXTH CLAIM FOR RELIEF
7
[Refusal of employment authorization documents to derivative U visa holders]
8

9

68. Plaintiffs incorporate by this reference the allegations set out in ¶¶ 1-55,

10 inclusive, above as though fully realleged here.

11

69. Defendants’ refusal to issue documentation of employment authorization to

12 persons granted U visas pursuant to 8 U.S.C. § 1101(a)(15)(U)(ii) except upon separate

13 application and fee, violates (i) the Crime Victims Protection Act, codified at, inter alia, 8

14 U.S.C. § 1184(p)(3)(B); and (ii) the due process and equal protection guarantees of the

15 Fifth Amendment of the United States Constitution.

16

XII

17
PRAYER FOR RELIEF
18

WHEREFORE plaintiffs pray that this Court —
19

20

1. Assume jurisdiction over this action;

21

2. Certify this action as a class action pursuant to Rule 23(b)(2), Fed.R.Civ.Proc.;

22

3. Declare that defendants’ policies, procedures, and practices as alleged

23 throughout this Complaint violate the Immigration and Nationality Act, as amended by

24 the Victims Protection Act; the Violence Against Women and Department of Justice

25 Reauthorization Act of 2005; the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.;
26 and the due process clause and equal protection guarantee of the Fifth Amendment to 27 the United States Constitution; 28

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1

4. Issue preliminary and permanent injunctions enjoined defendants, their

2 agents, employees, and successors in office from —

3

a) Denying derivative U visas to otherwise eligible family members of crime

4

victims because such crime victims or their family members turned 21, or

5

in the case of siblings of crime victims, such siblings turned 18, between

6
October 28, 2000 and September 17, 2007.
7
b) Denying accrued time toward naturalization to U visa recipients who
8

9

become lawful permanent residents and would be eligible for

10

naturalization but for defendants’ delay in issuing them U visas, as

11

challened herein.

12

c) Denying U visas to otherwise eligible applicants on the ground that their

13

law enforcement certifications were not signed by head of the certifying

14

agency, or a person in a supervisory role who has been specifically

15

designated by the head of the certifying agency to issue such certifications.

16

d) Denying U visas to otherwise eligible applicants on the ground that their

17
law enforcement certifications were not signed within six months of their
18
petitioning for U visas.
19

20

e) Failing to issue recipients of derivative U visas employment authorization

21

documents except upon submission of a separate application and fee.

22

f) Denying derivative U visas to otherwise eligible family members of crime

23

victims because such crime victims are United States citizens and not

24

immigrants.

25

5. Award plaintiffs costs of suit and attorney’s fees reasonably incurred as a

26 result of this lawsuit; and

27

6. Grant such further relief as the Court may deem just and proper.

28
Dated: February 19, 2008.

CENTER FOR HUMAN RIGHTS AND

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

CONSTITUTIONAL LAW Peter A. Schey Carlos R. Holguín Angela Viramontes
ASIAN PACIFIC ISLANDER LEGAL OUTREACH Victor M. Hwang Ivy C. Lee
CENTRAL AMERICAN RESOURCE CENTER Daniel Sharp
SANCTUARY FOR FAMILIES Julie E. Dinnerstein
PUBLIC LAW CENTER Kenneth W. Babcock Kirsten M. Kreymann
James Parry Eyster
BUSTAMANTE AND ASSOCIATES, PLC Andres Bustamante
/s/ ___________________________________ Peter A. Schey
/s/ ___________________________________ Carlos Holguin Attorneys for Plaintiffs

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United States District Court For the Northern District of California

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9

10

11 CATHOLIC CHARITIES CYO, et al.,
12 Plaintiffs,
13 v.
14 MICHAEL CHERTOFF, et al.,
15 Defendants.
16 _______________________________/

No. C 07-1307 PJH ORDER GRANTING MOTION TO DISMISS

17

The motion of defendants Michael Chertoff, Secretary, U.S. Department of

18 Homeland Security (“the Secretary”); U.S. Department of Homeland Security (“DHS”); and

19 U.S. Citizenship and Immigration Services (“USCIS”) to dismiss the first amended

20 complaint (“FAC”) for lack of subject matter jurisdiction and failure to state a claim came on

21 for hearing before this court on June 25, 2008. Plaintiffs appeared by their counsel Peter

22 A. Schey and Carlos R. Holguin, and defendants appeared by their counsel Jeffrey S.

23 Robins. Having read the parties’ papers and carefully considered their arguments and the

24 relevant legal authority, and good cause appearing, the court hereby GRANTS the motion.

25

STATUTORY AND REGULATORY BACKGROUND

26

With the enactment of the Victims of Trafficking and Violence Protection Act of 2000

27 (“VTVPA”), Congress created the “U” nonimmigrant classification (“U” visa) for victims of

28 certain qualifying crimes. VTVPA, Pub. L. 106-386, 114 Stat. 1464 (2000), codified at

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United States District Court For the Northern District of California

1 §§ 101(a)(15)(U), 214(p), and 245(m) of the Immigration and Nationality Act (“INA”), 8

2 U.S.C. §§ 1101(a)(15)(U), 1184(p), and 1255(m).1

3

The VTVPA, permits nonimmigrants (undocumented immigrants) who are victims of

4 serious crimes and who assist law enforcement in investigating and prosecuting those

5 crimes to apply for and receive “U” visas. The duration of the “U” visa is four years. An

6 immigrant who has held a “U” visa for three years may apply for lawful permanent resident

7 status.

8

Congress enacted the “U” visa provision in order to

9

strengthen the ability of law enforcement agencies to detect, investigate, and

prosecute cases of domestic violence, sexual assault, trafficking of aliens,

10

and other crimes described in section 101(a)(15)(U)(iii) of the Immigration and

Nationality Act committed against aliens, while offering protection to victims of

11

such offenses in keeping with the humanitarian interests of the United States.

This visa will encourage law enforcement officials to better serve immigrant

12

crime victims and to prosecute crimes committed against aliens.

13 VTVPA, Pub. L. 106-386, at § 1513(a)(2)(A). Congress intended that the “U” visa provision

14 would facilitate the reporting of crimes to law enforcement officials by “trafficked, exploited,

15 victimized, and abused aliens who are not in lawful immigration status” and would give “law

16 enforcement officials a means to regularize the status of cooperating individuals during

17 investigations or prosecutions.” Id. at § 1513(a)(2)(B).

18

The “U” nonimmigrant visa is available for issuance to an alien who,

19

(i) subject to [8 U.S.C. § 1184(p)], . . . files a petition for status under this

subparagraph, if the Secretary of Homeland Security determines that –

20

(I) the alien has suffered substantial physical or mental abuse as a

21

result of having been a victim of criminal activity described in clause (iii);

22

(II) the alien (or in the case of an alien child under the age of 16, the

parent, guardian, or next friend of the alien) possesses information

23

concerning criminal activity described in clause (iii);

24

(III) the alien (or in the case of an alien child under the age of 16, the

parent, guardian, or next friend of the alien) has been helpful, is being helpful,

25

or is likely to be helpful to a Federal, State, or local law enforcement official,

26

27

1 The VTVPA has three divisions: The Trafficking Victims Protection Act of 2000; the Violence Against Women Act of 2000; and a division with Miscellaneous Provisions. Section

28 1513, the “U” visa provision, is part of the Violence Against Women Act of 2000.

2

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United States District Court For the Northern District of California

1

to a Federal, State, or local prosecutor, to a Federal or State judge, to the

Service, or to other Federal, State, or local authorities investigating or

2

prosecuting criminal activity described in clause (iii); and

3

(IV) the criminal activity described in clause (iii) violated the laws of the

United States or occurred in the United States (including in Indian country and

4

military installations) or the territories and possessions of the United States;

5

(ii) if accompanying, or following to join, the alien described in clause (i)--

6

(I) in the case of an alien described in clause (i) who is under 21 years

of age, the spouse, children, unmarried siblings under 18 years of age on the

7

date on which such alien applied for status under such clause, and parents of

such alien; or

8

(II) in the case of an alien described in clause (i) who is 21 years of

9

age or older, the spouse and children of such alien; and

10

(iii) the criminal activity referred to in this clause is that involving one or more

of the following or any similar activity in violation of Federal, State, or local

11

criminal law: rape; torture; trafficking; incest; domestic violence; sexual

assault; abusive sexual contact; prostitution; sexual exploitation; female

12

genital mutilation; being held hostage; peonage; involuntary servitude; slave

trade; kidnaping; abduction; unlawful criminal restraint; false imprisonment;

13

blackmail; extortion; manslaughter; murder; felonious assault; witness

tampering; obstruction of justice; perjury; or attempt, conspiracy, or

14

solicitation to commit any of the above mentioned crimes;

15 8 U.S.C. § 1101(a)(15)(U)(i)-(iii).

16

A petitioner may not submit an “U” visa application without first obtaining a law

17 enforcement certification (“LEC”) from a federal, state, or local law enforcement official,

18 prosecutor, judge, or other federal, state, or local authority investigating the criminal activity

19 described in § 1101(a)(15)(U)(iii), above, stating that the alien “has been helpful, is being

20 helpful, or is likely to be helpful in the investigation or prosecution of” such criminal activity.

21 investigating specific criminal activity. See 8 U.S.C. § 1184(p)(1). The certification may

22 also be provided by a DHS official whose ability to provide such certification is not limited to

23 information concerning immigration violations. Id.

24

Congress also empowered the Attorney General2 with discretion to convert the

25 status of such immigrants to that of permanent residents “when doing so is justified on

26 humanitarian grounds, for family unity, or is otherwise in the public interest.” See VTVPA,

27

28

2 With the creation of DHS, this authority devolved to the Secretary.

3

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United States District Court For the Northern District of California

1 Pub. L. 106-386, at § 1513(a)(2)(C). Thus, under 8 U.S.C. § 1255(m), the Secretary “may

2 adjust the status of an alien admitted into the United States (or otherwise provided

3 nonimmigrant status) under [the “U” visa provision of § 1101(a)(15)(U)] to that of an alien

4 lawfully admitted for permanent residence . . . .” 8 U.S.C. § 1255(m)(1).

5

In addition, if the Secretary has approved the adjustment of status of an alien under

6 subsection (1), the Secretary “may adjust the status of or issue an immigrant visa to a

7 spouse, a child, or in the case of an alien child, a parent who did not receive a

8 nonimmigrant visa [under the “U” visa provision of § 1101(a)(15)(U)] if the Secretary

9 considers the grant of such status or visa necessary to avoid extreme hardship.” 8 U.S.C.

10 § 1255(m)(3).

11

When it enacted the VTVPA, Congress did not provide a deadline for the affected

12 agencies to promulgate regulations with regard to the “U” visas. In 2005, Congress passed

13 the Violence Against Women Act (“VAWA 2005"), which the president signed on January 5,

14 2006. That act required the Attorney General, the Secretary of Homeland Security, and the

15 Secretary of State to promulgate regulations to implement the “U” visa sections of the

16 VTVPA “not later than 180 days after the date of enactment.” VAWA 2005, Pub. L. 109-

17 162 at § 828, 119 Stat. 2960, 3006, codified at 8 U.S.C. § 1101. Thus, the deadline for

18 promulgation of the “U” visa regulations was July 4, 2006.

19

In the absence of final regulations, the Department of Homeland Security operated

20 from interim guidance with regard to the “U” visa applications. On August 30, 2001 and on

21 October 8, 2003, the Immigration and Naturalization Service (“INS”) and USCIS3 issued

22 interim guidance to establish interim procedures to be followed while the agencies acted to

23 promulgate regulations implementing the “U” visa and its protections. Mem. from Michael

24 D. Cronin to Michael A. Pearson, re VTVPA Policy – “T” and “U” Nonimmigrant Visas (Aug.

25 30, 2001); Mem. from William R. Yates to Director, Vermont Service Center, re

26 Centralization of Interim Relief for U Nonimmigrant Status Applications (Oct. 3, 2003).

27

28

3 USCIS is the successor, for purposes of the VTVPA, to the INS.

4

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1

This guidance, now superceded by the interim final regulations, allowed potential “U”

2 victims who established prima facie eligibility for “U” non-immigrant status to be placed in

3 deferred action, paroled, or granted stays of removal, and to be granted work authorization

4 to work in the United States, to ensure that they were not removed from the country before

5 the agency could determine whether they were eligible for relief. The guidance also

6 provided that such victims might receive work authorization.

7

Prior to the promulgation of the final regulations, there was no formal application to

8 be used for “U” visas. The October 3, 2003 guidance provided that aliens who believed

9 they qualified for interim relief could submit correspondence along with evidentiary proof

10 addressing the four criteria listed in 8 U.S.C. § 1101(a)(15)(U)(i)(I)-(IV). If the applicant did

11 not submit sufficient information to establish prima facie eligibility, or was otherwise

12 determined to be ineligible for interim relief, the applicant would receive a letter indicating

13 the reason the agency could not grant interim relief. Beginning in October 2005, all such

14 requests were processed at USCIS’ Vermont Service Center. Oct. 3, 2003, Guidance at 2-

15 5; see Fonseca-Sanchez v. Gonzales, 484 F.3d 439, 442 n.5 (9th Cir. 2007).

16

On January 6, 2006, USCIS issued further guidance. Mem. from Michael Aytes to

17 Director, Vermont Service Center, re Applications for U Nonimmigrant Status (Jan. 6,

18 2006). This guidance indicated that when USCIS began adjudicating applications for “U”

19 visas, applicants who were granted interim relief and whose “U” visa applications were

20 subsequently approved would have their “U” nonimmigrant status recorded as of the date

21 the request for “U” interim relief was approved. This guidance ensured that future “U” visa

22 recipients would not lose time accrual for other immigration benefits, and that potential “U”

23 visa recipients would not be prejudiced while the agency acted to implement the “U” visa

24 program.

25

On April 11, 2007, DHS sent an interim final rule for approval for publication in the

26 Federal Register. The regulations were published as an interim final rule on September 17,

27 2007. See 72 FR 53,014 (Sept. 17, 2007), to be codified at 8 C.F.R. parts 103, 212, 214,

28 248, 274a, and 299.

5

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1

The regulations became effective on October 17, 2007. The regulations provided

2 that potential “U” visa petitioners who had previously received interim relief in the form of a

3 deferred action would have until April 16, 2008 to file a Form I-918 in order to petition for a

4 “U” visa and maintain the benefits of their interim relief during the adjudication of their “U”

5 visa petition. The regulations also described the process for reviewing and screening “U”

6 visa petitions, including the provision that where additional evidence is required for

7 adjudication purposes, USCIS adjudicators would send a request for evidence (“RFE”) to

8 the petitioner.

9

Following publication of the interim final rule in the Federal Register, USCIS

10 continued to review the comments that were received prior to the November 16, 2007,

11 deadline. As a means of clarifying the interim final regulations and responding to a number

12 of the comments prior to promulgation of a final rule, USCIS issued clarifying guidance on

13 March 27, 2008. Mem. from Michael Aytes to Field Leadership, re New Classification for

14 Victims of Criminal Activity – Eligibility for “U” Nonimmigrant Status (Mar. 27, 2008). This

15 guidance instructed adjudicators, among other things, to consider the ages required to

16 establish the eligibility of derivative beneficiaries based on the date that USCIS received a

17 petitioner’s request for interim relief in the form of a deferred action.

18

PROCEDURAL BACKGROUND

19

The present action was filed as a proposed class action on March 6, 2007. On

20 August 16, 2007, the court issued an order granting in part and denying in part defendants’

21 motion to dismiss, with leave to amend. The first amended complaint (“FAC”) was filed on

22 February 19, 2008, by five organizational and 18 individual plaintiffs. Following is a

23 summary as the court understands the allegations.

24

The organizational plaintiffs are Catholic Charities CYO, International Institute of the

25 East Bay, Voces Unidas Project of the Center for Human Rights and Constitutional Law,

26 Sanctuary for Families, and Diocesan Migrant and Refugee Services, Inc. These five

27 organizations provide services to immigrants, including assisting undocumented immigrants

28 to obtain legal status.

6

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1

The individual plaintiffs are Elizabeth Lopez Gomez, Sandra Bucio, Constantina

2 Campos, Maria Estervina Perez, Francisca Ramirez Alvarez, Irma Morena Sanvicente,

3 Maria Luisa Arroyo Torres, Alma Rosa Padilla de Hernandez, Maria Hernandez, Rosa

4 Amezquita Razo, Antonio Perez Garcia, Veronica Reyes Bonilla, Sergio Bucio Perez,

5 Andres Bucio Perez, Marlinda V. Clarke, Patricia Garcia, Blanca Rossell, and Melchor

6 Vargas Silva.

7

Plaintiffs Elizabeth Lopez Gomez, Sandra Bucio, Constantina Campos, Maria

8 Estervina Perez, and Francisca Ramirez Alvarez are individuals who are alleged to be

9 statutorily eligible for “U” visas because they are victims of serious crime who cooperated

10 with the authorities and provided useful information, and who received certifications to that

11 effect from law enforcement. Plaintiffs allege that these individuals applied for “U” visas at

12 various times, and were placed in “deferred status” pending finalization of the regulations

13 and implementation of the “U” visa program.

14

Plaintiffs Irma Morena Sanvicente, Maria Luisa Arroyo Torres, and Alma Rosa

15 Padilla de Hernandez are individuals who are alleged to be statutorily eligible for “U” visas

16 because they are victims who cooperated with the authorities and provided useful

17 information, and who received certifications to that effect from law enforcement. However,

18 unlike the first five plaintiffs listed above, these three plaintiffs were allegedly not placed in

19 “deferred status” by USCIS because the law enforcement certifications were not issued

20 within six months prior to the date each applied for the “U” visa, as required by the VTVPA;

21 and, in the case of Arroyo Torres and Padilla de Hernandez, the certifications were also not

22 signed by the head of a law enforcement agency designated to sign such certifications, as

23 required by the regulations.

24

Plaintiffs Rosa Amezquita Razo, Antonio Perez Garcia, Veronica Reyes Bonilla, and

25 Melchor Vargas Silva are individuals alleged to be victims of serious crime that fell under

26 the jurisdiction of federal law enforcement (generally U.S. Border Patrol, a division of U.S.

27 Customs and Border Protection), who cooperated with investigative authorities and are

28 otherwise eligible for “U” visas, but for whom defendants have allegedly refused to issue

7

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1 LECs.

2

Plaintiffs Sergio Bucio Perez and Andres Bucio Perez are the minor children of

3 plaintiff Sandra Bucio, and are alleged to be statutorily eligible for derivative “U” visas.

4 Plaintiffs allege that but for defendants’ failure to issue “U” visas to these plaintiffs when

5 they first applied, they would have accrued three years’ in “U” visa status as of June 2007,

6 and since that time would have been eligible for lawful permanent residence.

7

Plaintiff Marlinda V. Clarke is the child of crime victim plaintiff Maria Hernandez; and

8 plaintiff Patricia Garcia is the child of a crime victim who is not named as a plaintiff in this

9 action. Plaintiffs claim that plaintiffs Clarke and Garcia were formerly eligible for derivative

10 “U” visas based on their parents’ eligibility for “U” visas, but are no longer eligible because

11 they have now passed their 21st birthdays.

12

Plaintiff Blanca Rossell is the mother of a crime victim and was formerly eligible for a

13 derivative “U” visa, but is alleged to be no longer eligible because her child is over the age

14 of 21. Plaintiff Rossell’s child is not a plaintiff.

15

Plaintiffs allege that while defendants have now promulgated the necessary

16 regulations, they have failed to redress certain injuries that plaintiffs claim resulted from

17 defendants’ delay in implementing the “U” visa program. These claimed injuries include

18 loss of accrued time toward eligibility for lawful permanent residence and naturalization.

19

Plaintiffs assert six causes of action:

20

(1) failure to implement the “U” visa program until September 17, 2007; and

21 continuing failure to issue “U” visas, and legal permanent residency regulations or status to

22 persons entitled to such status, in violation of the VTVPA; the INA, 8 U.S.C. § 1103; the

23 Violence Against Women Act; the APA; and the due process and equal protection clauses

24 of the Fifth Amendment to the United States Constitution, FAC ¶¶ 57-58;

25

(2) denial of derivative “U” visas to persons eligible during the alleged “seven-

26 year delay period” between the signing of the VTVPA and the promulgation of the

27 regulations, in violation of the the VTVPA; the INA, 8 U.S.C. § 1103; the VAWA; the APA;

28 and the due process and equal protection clauses of the Fifth Amendment to the United

8

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1 States Constitution, FAC ¶¶ 60-61;

2

(3) imposition of “unreasonable requirements” for LECs without statutory

3 authority, in violation of the INA, 8 U.S.C. §§ 1101(a)(15)(U) and 1184(p)(1); and the due

4 process and equal protection clauses of the Fifth Amendment to the United States

5 Constitution, FAC ¶ 63;

6

(4) refusal to issue and set standards for issuance of law enforcement

7 certifications to victims or crimes investigated by DHS officers or agents, in violation of the

8 VTVPA; the APA; and the due process and equal protection clauses of the Fifth

9 Amendment to the United States Constitution, FAC ¶ 65;

10

(5) denial of equal protection to U.S. citizen crime victims by denying “U” visa

11 eligibility “to the undocumented immigrant parents of United States citizen children who are

12 the victims of crimes and who or whose parents cooperated with law enforcement agencies

13 in the investigation or prosecution of such crimes, while granting such benefit to the

14 immigrant parents of undocumented and lawful permanent resident children,” FAC ¶ 67;

15 and

16

(6) refusal to issue documentation of employment authorization to derivative “U”

17 visa holders except upon separate application and payment of fee, in violation of the

18 VTVPA; and the due process and equal protection clauses of the Fifth Amendment to the

19 United States Constitution.

20

Plaintiffs seek a judicial declaration that the policies, procedures, and practices

21 alleged in the FAC violate the INA, as modified by the VTVPA; the VAWA; the APA; and

22 the due process and equal protection clauses of the Fifth Amendment to the United States

23 Constitution. Plaintiffs also seek injunctive relief.

24

Defendants now seek an order dismissing the FAC, arguing that the court lacks

25 subject matter jurisdiction because certain of plaintiffs’ claims are moot or unripe, and

26 because plaintiffs lack standing; and also arguing that the FAC fails to state a claim as to

27 certain causes of action.

28

DISCUSSION

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1 A. Legal Standards

2

1. Dismissal for Lack of Subject Matter Jurisdiction

3

Federal courts are courts of limited jurisdiction, possessing only that power

4 authorized by Article III of the United States Constitution and statutes enacted by Congress

5 pursuant thereto. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986).

6 Thus, federal courts have no power to consider claims for which they lack subject-matter

7 jurisdiction. See Chen-Cheng Wang ex rel. United States v. FMC Corp., 975 F.2d 1412,

8 1415 (9th Cir. 1992). The court is under a continuing duty to dismiss an action whenever it

9 appears that the court lacks jurisdiction. Id. Federal courts are courts of limited

10 jurisdiction. Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989).

11

The burden of establishing that a cause lies within this limited jurisdiction rests upon

12 the party asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S.

13 375, 377 (1994); see also Tosco Corp. v. Communities for a Better Env't, 236 F.3d 495,

14 499 (9th Cir. 2001). The defendant may either challenge jurisdiction on the face of the

15 complaint or provide extrinsic evidence demonstrating lack of jurisdiction on the facts of the

16 case. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). Where the defendants

17 challenge jurisdiction over certain claims of the complaint solely as a matter of law, all

18 allegations of the complaint are taken as true and all disputed issues of fact are resolved in

19 favor of the non-moving party. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1990).

20

A motion to dismiss for lack of subject matter jurisdiction may also be a “speaking

21 motion” in which the defendant actually challenges the existence of subject matter

22 jurisdiction. In such a case, “[n]o presumptive truthfulness attaches to plaintiff’s allegations,

23 and the existence of disputed material facts will not preclude the trial court from evaluating

24 for itself the merits of jurisdictional claims.” Thornhill Publ’g v. Gen. Tel. & Elec. Corp., 594

25 F.2d 730, 733 (9th Cir. 1979). Moreover, the plaintiff must establish jurisdiction with

26 evidence such as affidavits or depositions. See Schwarzer, Tashima & Wagstaffe, Federal

27 Civil Procedure Before Trial (2008) §§ 9:77-78.

28

Standing is a critically important jurisdictional limitation, “an essential and

10

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1 unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defenders

2 of Wildlife, 504 U.S. 555, 560 (1991). It is not subject to waiver; like subject matter

3 jurisdiction generally, it must be considered by the federal courts even if the parties do not

4 raise it. United States v. Hays, 515 U.S. 737, 742 (1995). Plaintiffs bear the burden of

5 establishing standing. Central Delta Water Agency v. United States, 306 F.3d 938, 947

6 (9th Cir. 2002).

7

The doctrine of standing incorporates both constitutional requirements and

8 “prudential considerations.” Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99

9 (1979). To establish a “case or controversy” within the meaning of Article III, the plaintiff

10 must show an injury in fact that is concrete and not conjectural, a causal connection

11 between the injury and the defendant’s conduct or omissions, and a likelihood that the

12 injury will be redressed by a favorable decision. Lujan, 504 U.S. at 559-61. Plaintiffs may

13 have to establish “prudential” standing by showing that the interest sought to be protected

14 is arguably within the zone of interests to be protected by the statute in question. National

15 Credit Union Adm. v. First Nat’l Bank & Tr. Co., 522 U.S. 479, 488 (1998).

16

2. Dismissal for Failure to State a Claim

17

A motion to dismiss under Rule 12(b)(6) tests for the legal sufficiency of the claims

18 alleged in the complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003).

19 Review is limited to the contents of the complaint. Allarcom Pay Television, Ltd. v. Gen.

20 Instrument Corp., 69 F.3d 381, 385 (9th Cir. 1995). To survive a motion to dismiss for

21 failure to state a claim, a complaint generally must satisfy only the minimal notice pleading

22 requirements of Federal Rule of Civil Procedure 8. Rule 8(a)(2) requires only that the

23 complaint include a “short and plain statement of the claim showing that the pleader is

24 entitled to relief.” Fed. R. Civ. P. 8(a)(2).

25

Specific facts are unnecessary – the statement need only give the defendant “fair

26 notice of the claim and the grounds upon which it rests.” Erickson v. Pardus, 127 S.Ct.

27 2197, 2200 (2007) (citing Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007)).

28 All allegations of material fact are taken as true. Erickson, 127 S.Ct. at 2200. However, a

11

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1 plaintiff’s obligation to provide the grounds of his entitlement to relief “requires more than

2 labels and conclusions, and a formulaic recitation of the elements of a cause of action will

3 not do.” Bell Atlantic, 127 S.Ct. at 1964-65 (citations and quotations omitted). Rather, the

4 allegations in the complaint “must be enough to raise a right to relief above the speculative

5 level.” Id. at 1965. A motion to dismiss should be granted if the complaint does not proffer

6 enough facts to state a claim for relief that is plausible on its face. See id. at 1966-67.

7 B. Defendants’ Motion

8

Defendants argue that each of the six causes of action alleged in the FAC should be

9 dismissed. They separate the discussion of the statutory claims from the discussion of the

10 constitutional claims.

11

1. First cause of action – statutory claims

12

In the first cause of action, plaintiffs allege that defendants failed to implement the

13 “U” visa program until September 17, 2007; and have also failed to issue “U” visas, and

14 legal permanent residency (“LPR”) regulations or status to persons entitled to such status,

15 in violation of the VTVPA; the INA, 8 U.S.C. § 1103; the VAWA; and the APA.

16

The first cause of action appears to consist of three separate claims based on the

17 VTVPA and the APA – (a) that defendants failed to implement the “U” visa provision

18 (8 U.S.C. § 1101(a)(15)(U)) until September 17, 2007; (b) that defendants continue to deny

19 “U” visas and LPR status to crime victims and their close family members who are lawfully

20 entitled to such status; and (c) that defendants unlawfully failed to issue lawful permanent

21 status regulations.

22

Defendants argue that the first cause of action should be dismissed for four reasons.

23 First, they contend that the claim of failure to implement the “U” visa program until

24 September 17, 2007, should be dismissed for lack of standing and as moot. Defendants

25 assert that no plaintiff has standing to challenge defendants’ alleged delay in the

26 promulgation of regulations where the remedy for such violation – a court order directing

27 the promulgation of the regulations – would not address any of the plaintiffs’ alleged

28 injuries. For the same reason, they argue, this claim is moot.

12

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1

Second, defendants assert that the claims regarding the alleged delay in

2 promulgating adjustment regulations for “U” visa recipients – the claim that defendants

3 unlawfully failed to issue regulations allowing eventual “U” visa recipients to apply for LPR

4 status – should be dismissed for lack of ripeness, as none of the plaintiffs are “U” visa

5 recipients, and thus have not suffered the harm alleged, regarding the accrual of time for

6 LPR status.

7

Third, defendants contend that none of the plaintiffs has standing to challenge

8 USCIS’ alleged unlawful failure to grant “U” visas and LPR status to plaintiffs because

9 plaintiffs have no clear right to receive those benefits. In addition, defendants note that the

10 FAC does not allege any violation of plaintiffs’ right to apply for “U” visas, but rather asserts

11 a claim based on an alleged violation of plaintiffs’ right to receive “U” visas. Defendants

12 contend that because no plaintiff can show that he/she had a right to receive a “U” visa

13 during the seven months since the “U” visa regulations became effective, this claim should

14 be dismissed for lack of standing.

15

Fourth, defendants assert that the court lacks jurisdiction over this claim because

16 the pace and outcome adjudications of “U” visa petitions and lawful permanent residence

17 status applications are not legally required and are committed to agency discretion by law.

18 Defendants contend that because there is no requirement that obligates USCIS to grant “U”

19 visas or LPR status to plaintiffs, and because there is no requirement that controls when

20 USCIS must complete the adjudication of “U” visa petitions and applications for LPR

21 status, and because there is no requirement that USCIS cut short the statutorily-mandated

22 time an alien must have been in LPR status to gain eligibility for naturalization, the court

23 should find that it lacks jurisdiction over the first cause of action.

24

In opposition, plaintiffs assert that the regulations promulgated by defendants have

25 made no plaintiff or proposed class member whole, and assert that the claim alleging the

26 unlawful “seven-year delay” in issuing “U” visas therefore remains justiciable. Plaintiffs

27 argue that they have standing based on the injury caused by defendants’ continuing delay

28 in issuing “U” visas (including the alleged delay in adjudicating “U” visa applications, and

13

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1 the continuing injury from past delay); and that they have standing to sue for timely

2 adjudication of their eligibility for “U” visas, regardless of whether they are ultimately

3 granted such visas, because it is based on their “right to apply” for “U” visas. They also

4 assert that after seven years (apparently referring to the time from the enactment of the

5 VTVPA to the filing of the present action), their challenge to defendants’ delay in

6 implementing the “U” visa program is more than ripe for review.

7

The motion to dismiss the statutory claims in the first cause of action is GRANTED.

8 As an initial matter, the court notes that plaintiffs’ repeated reference to the “seven-year

9 delay” in implementing the “U” visa program is misleading. Congress did not issue a

10 directive to promulgate regulations to implement the program until it enacted VAWA 2005,4

11 at which time, Congress gave USCIS 180 days to promulgate regulations – or until July 5,

12 2006. The interim final regulations were published on September 17, 2007. Thus, any

13 delay that can be attributed to defendants regarding the promulgation of “U” visa

14 regulations is at most 14 months.

15

Moreover, the claim regarding the failure to promulgate “U” visa regulations is now

16 moot, and the motion to dismiss that claim is GRANTED. An issue is moot “when the

17 issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the

18 outcome.” City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000). If the parties cannot

19 obtain any effective relief, any opinion about the legality of a challenged action would be

20 advisory. Id. “[A]n actual controversy must be extant at all stages of review, not merely at

21 the time the complaint is filed.” Arizonans for Official English v. Arizona, 520 U.S. 43, 67

22 (1997) (citation and quotation omitted). Here, the claim is moot because the regulations

23 were published as an interim final rule in the Federal Register more than fifteen months

24 ago, six months after plaintiffs filed the present action. A federal court has no authority to

25 give opinions on moot questions. See id.

26

27

4 Indeed, defendants point out, the VTVPA was silent with regard to any deadline for

28

the promulgation of “U” visa regulations, al provisions of the VTVPA.

though it did s et specific deadlines for other

14

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1

The court also finds that plaintiffs lack standing to challenge the delay in the

2 promulgation of the regulations. The APA grants federal court standing to any “person

3 suffering legal wrongs because of agency action, or adversely affected or aggrieved by

4 agency action within the meaning of a relevant statute.” 5 U.S.C. § 702. A plaintiff seeking

5 judicial review of agency action under the APA must meet not only the constitutional

6 requirements of standing, but must also demonstrate prudential standing. National Credit

7 Union Admin., 522 U.S. at 488.

8

Thus, to establish standing under the APA, a plaintiff must show injury in fact,

9 causation, a likelihood of redressability, and that he falls “within the ‘zone of interests' to be

10 protected or regulated by the underlying statute in question.” Graham v. Federal

11 Emergency Management Agency, 149 F.3d 997, 1001 (9th Cir. 1998); see also National

12 Credit Union, 522 U.S. at 487-90. Here, the court finds that plaintiffs lack standing to

13 challenge the delay in the promulgation of regulations because the remedy for such

14 violation – a court order directing the promulgation of the regulations – would not address

15 any of the plaintiffs’ alleged injuries.

16

The court finds further that the claims regarding the alleged delay in promulgating

17 adjustment regulations for “U” visa recipients is not ripe. “The ripeness doctrine prevents

18 premature adjudication. It is aimed at cases that do not yet have a concrete impact upon

19 the parties arising from a dispute, in an analysis similar to the injury-in-fact inquiry under

20 the standing doctrine.” Schwarzer, Tashima & Wagstaffe, Federal Civil Procedure Before

21 Trial (2008 ed.) § 2:1278.

22

In determining whether issues raised in cases seeking injunctive and declaratory

23 judgment remedies are ripe for review, courts look at the fitness of the issues for judicial

24 review, and the hardship to the parties if the court were to withhold consideration. Abbot

25 Laboratories v. Gardner, 387 U.S. 136, 149 (1967).

26

With regard to the fitness of the issues for review, courts generally consider whether

27 the matter is purely legal, whether consideration of the issue would benefit from a more

28 concrete foundation, and whether the agency’s action is final. See National Park

15

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1 Hospitality Ass’n v. Department of Interior, 538 U.S. 803, 811 (2003). Here, because none

2 of the plaintiffs have received “U” visas, and there is no clear evidence that any of the

3 plaintiffs will receive “U” visas, the facts are not fully developed enough for the court to find

4 that plaintiffs can challenge USCIS’ obligations regarding the promulgation of an

5 adjustment-of-status rule.

6

With regard to the hardship on the parties, courts generally consider whether any

7 delay would cause hardship to the plaintiffs, whether the court’s intervention would interfere

8 with further administrative action, and whether the court would benefit from further factual

9 development. See Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 733 (1998). Here,

10 dismissing a challenge to a claim of delay regarding plaintiffs’ eligibility for adjustment of

11 status – where eligibility for “U” visas has not yet been adjudicated – would pose no

12 immediate detrimental impact.5

13

Finally, the court finds that plaintiffs lack standing to assert the claim of failure to

14 issue the “U” visas and grant LPR status. The VTVPA vests the Secretary with discretion

15 to determine eligibility for “U” visas, and also whether to adjust the status of the immigrant

16 applicants, and the applicable statutes do not mandate a particular outcome or confer any

17 established or protected interest in the grant of a “U” visa or LPR status. Thus, because

18 the outcome of such determinations are committed to USCIS’ discretion by law, plaintiffs

19 lack standing to challenge the alleged failure to grant “U” visas or LPR status. See 5

20 U.S.C. § 701(a)(2); Brock v. Pierce County, 476 U.S. 253, 260 n.7 (1986) (APA entitles any

21

22

5 Only seven of the individuapl laintiffs are alleged to be eligible for adjustment of status – Elizabeth Lopez Gomez; Sandra Bucio; Cons tantina Campos; Maria Estervina Perez;

23

Francisca Ramirez Alvarez; Sergio Bucio Pe rez, and Andres Bucio Perez – and of those, plaintiffs do not allege that Campos and Rami rez Alvarez have petitioned for a “U” visa. In

24

addition, the petitions of Lopez Gomez and Esterivna Perez cannot be aduj dicated until USCIS receives responses to its RFEs.

25

Only Sandra Bucio and her two sons appear tobe near the point of having their “U” visa

26

petitions adjudicated. However, the Bucio plaintiffs cannot show injury because if their petitions are denied, the alleged harm caused by USCIS’ failure to promulgate adjustment of

27

status regulations will be merely hypothetical, and if the petitions are granted, the regulations will likely be promulgated during the six-month period that is normally required to process an

28 adjustment of status application in the San Francisco District Office.

16

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1 person “affected or aggrieved by agency action to judicial review,” 5 U.S.C.

2 § 702, unless the relevant statute precludes judicial review or “agency action is committed

3 to agency discretion by law,” id. § 701(a)(1)).

4

When an agency is presented with an unreasonable delay claim under the APA, it

5 can be compelled to take action only where the action in question is a “discrete action that

6 [the agency] is legally required to take.” Norton v. Southern Utah Wilderness Alliance, 542

7 U.S. 55, 63 (2004). Here, because the statutes vest the Secretary with discretion as to the

8 issuance of “U” visas and LPR status, and because there is no legal requirement for USCIS

9 to complete the adjudication of “U” visa petitions and applications for LPR status within a

10 particular time period, the court lacks jurisdiction to review the claims asserted in the first

11 cause of action.

12

2. Second cause of action – statutory claims

13

In the second cause of action, plaintiffs allege that defendants failed to timely

14 implement the “U” visa program and illegally failed to issue “U” visas to persons eligible

15 “during the seven year delay period.” The second cause of action appears to assert a

16 claim that USCIS’ regulations act to illegally deny derivative U visa status because of the

17 date used to determine eligibility.

18

The VTVPA provides that parents, spouses, children, and unmarried siblings (under

19 18 years of age) may derive “U” visa benefits from principal relatives who are under the age

20 of 21 on the date on which “such alien applied for [“U” visa] status,” but that only spouses

21 and children (under 21 years of age) may derive “U” visa status from principal relatives over

22 21 years of age. 8 U.S.C. §§ 1101(a)(15)(U)(ii)(I), (II).

23

Plaintiffs assert that the result of defendants’ delay in implementing the “U” visa

24 program is that plaintiffs Marlinda Clarke and Patricia Garcia, who would have been eligible

25 to receive derivative “U” visas as children of crime victims, have now “aged out” of eligibility

26 because they have passed the age of 21. Plaintiffs also contend that plaintiff Blanca

27 Rossell is the parent of a crime-victim child who would have been eligible for a derivative

28 “U” visa but is no longer eligible because the child has passed the age of 21.

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1

Defendants argue that the second cause of action should dismissed as moot and for

2 lack of standing, because the March 27, 2008 guidance eliminated the claimed injury. The

3 March 27, 2008 guidance instructs adjudicators to determine derivative “U” visa eligibility

4 based on, if possible, the date that the interim relief beneficiaries first applied for such

5 benefits, in order to ensure that interim relief beneficiaries and their derivative parents,

6 spouses, or children are not prejudiced by the fact that it took USCIS some time to

7 promulgate the “U” visa regulations.

8

Under this guidance, if a crime victim who is under the age of 21 requested interim

9 relief in the form of deferred action prior to the date he/she turned 21, then his/her parents

10 would be eligible for derivative “U” visas even after the crime victim turned 21. Similarly, if

11 an adult crime victim requested interim relief in the form of deferred action prior to the time

12 his/her minor children turned 21, those children would be eligible for derivative “U” visas

13 after they turned 21.

14

Here, defendants assert, Marlinda Clarke and Patricia Garcia appear eligible to

15 receive derivative “U” visa benefits if their principals’ applications are granted, because the

16 FAC alleges that their requests for interim relief in the form of deferred action were

17 received before either turned 21. Defendants also contend, however, that plaintiffs do not

18 allege that the principal beneficiaries from whom Clarke and Garcia claim to derive their

19 derivative status applied for “U” visas.

20

Marlinda Clarke’s mother Maria Hernandez is alleged to be a victim of felony assault

21 who cooperated with law enforcement in the investigation of the crime against her. In

22 December 2006, Hernandez petitioned USCIS for benefits for herself and her two

23 daughters. Clarke allegedly turned 21 four days after Hernandez submitted the petition. In

24 April 2007, defendants granted Hernandez and her daughters deferred action, but did not

25 issue “U” visas because the “U” visa program had not yet been implemented. Plaintiffs do

26 not allege that Hernandez subsequently applied for a “U” visa. In February 2008,

27 defendants notified Hernandez that Clarke’s application for a “U” visa was being returned to

28 her because she had turned 21 and was therefore ineligible for derivative status.

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1

Patricia Garcia’s mother is alleged to be a crime victim who cooperated with law

2 enforcement in the investigation of that crime. In July 2007, USCIS granted Garcia interim

3 relief, but did not issue a “U” visa because the “U” visa program had not yet been

4 implemented. Plaintiffs do not allege that Garcia’s mother subsequently applied for a “U”

5 visa. They assert only that Garcia turned 21 in September 2007, and is now deemed

6 ineligible for a derivative “U” visa.

7

It appears that Blanca Rossell might be eligible to claim derivative benefits based on

8 her under-21 daughter’s alleged eligibility as a “U” visa applicant, as asserted in the FAC.

9 However, the FAC also alleges that Rossell’s daughter Georgette Fernandez was born on

10 April 25, 1980. FAC ¶ 23. If true, this would mean that she turned 21 on April 25, 2001,

11 five years prior to the time that plaintiffs allege that Rossell would have begun accruing time

12 towards lawful permanent resident status. In addition, the statement that Fernandez was

13 born on April 25, 1980 conflicts with the statement that Fernandez turned 21 on September

14 16, 2007. Id.

15

Defendants contend that because plaintiffs do not allege that the principal

16 beneficiaries from whom Marlinda Clarke, Patricia Garcia, or Blanca Rossell claim to derive

17 their derivative status have petitioned for a “U” visa, it is impossible for Clarke, Garcia, or

18 Rossell to have their alleged injuries redressed, because they are otherwise unable to

19 receive derivative “U” visas even if the court provides some remedy for their alleged

20 injuries. Similarly, defendants contend, the organizational plaintiffs lack standing because

21 the individual plaintiffs lack standing.

22

Thus, defendants argue, whether the court finds that the March 27, 2008 guidance

23 has mooted out plaintiffs’ claims, or that no plaintiff has standing to assert the second

24 cause of action, this claim should be dismissed.

25

In opposition, plaintiffs assert that the March 27, 2008 guidance is “largely

26 unintelligible,” and even if improperly construed favorably to defendants, does nothing for

27 “aged-out” family members ineligible for deferred action. Plaintiffs claim that the guidance

28 is insufficient to moot plaintiffs’ claims, because it does not specify what sort of “filing” will

19

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1 trigger the age freeze, and because it contains no suggestion that USCIS has notified

2 persons whose applications CIS expressly rejected prior to issuance of the guidance that

3 they may and should re-submit their application for derivative U-visas. Plaintiffs contend

4 they retain standing to sue for injunctive relief to compel defendants to notify rejected

5 applicants of their right to re-submit applications for derivative “U” visas for re-adjudication

6 pursuant to the March 27, 2008 guidance.

7

Finally, plaintiffs assert that the March 27, 2008 guidance is ineffectual because it

8 applies only to individuals who applied for interim relief. They contend, however, that many

9 family members of crime victims did not apply for interim relief because they believed they

10 were ineligible, based on the policy stated in the October 8, 2003 guidance (requiring a

11 showing of extreme hardship if the family member were removed from the United States, in

12 addition to the other requirements for a derivative “U” visa), and would not be excluded

13 from the purported benefits of the March 27 guidance no matter how it is interpreted.

14

The court finds that the motion to dismiss the second cause of action must be

15 GRANTED. The general claim that defendants have illegally denied derivative status to

16 unidentified plaintiffs who had “aged out” of eligibility has been mooted by the issuance of

17 the March 27, 2008 guidance.

18

As for plaintiffs Marlinda Clarke, Patricia Garcia, and Blanca Rossell, it appears that

19 they are not eligible for derivative “U” visas, as the FAC does not allege that the principal

20 beneficiaries from whom they claim to derive their derivative status actually applied for “U”

21 visas. If, in fact, their principal beneficiaries did apply for “U” visas, plaintiffs may amend

22 the complaint to so allege.

23

3. Third and sixth causes of action – statutory claims

24

The third cause of action alleges that defendants imposed unreasonable

25 requirements for law enforcement certifications without statutory authority, in violation of 8

26 U.S.C. §§ 1101(a)(15)(U) and 1184(p)(1); and the sixth cause of action alleges that

27 defendants refused to issue documentation of employment authorization to derivative “U”

28 visa holders, except upon separate application and payment of a fee, in violation of the

20

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1 VTVPA.

2

Defendants argue that the third and sixth causes of action fail because the VTVPA

3 provides no private right of action. They also assert that plaintiffs fail to state a claim that

4 USCIS’ regulations conflict with the VTVPA or are otherwise an impermissible construction

5 of the statute.

6

Defendants’ first argument is that plaintiffs cannot independently challenge a

7 violation of the VTVPA. They contend that neither federal question jurisdiction nor the

8 Declaratory Judgment Act is sufficient to confer jurisdiction, and that the VTVPA does not

9 create a private right of action.

10

In opposition, plaintiffs assert that the court rejected this argument when defendants

11 previously raised it in the motion to dismiss the original complaint.6 In addition, in what

12 appears to be an attempt to evade the page limits set forth in Civil Local Rule 7-4(b),

13 plaintiffs incorporate by reference the arguments made regarding this issue in their

14 opposition to the motion to dismiss the original complaint.

15

A private right of action to enforce an alleged violation of a federal statute must be

16 created by Congress. Alexander v. Sandoval, 532 U.S. 275, 287 (2001). Absent an

17 express or implied statutory intent to create a private right of action to enforce a statute and

18 its accompanying remedy, a cause of action does not exist and courts may not create one.

19 Id. at 286-87. The question whether Congress intended to create a private right of action is

20 “definitely answered in the negative where a statute by its terms grants no private rights to

21 any identifiable class.” Gonzaga Univ. v. Doe, 536 U.S. 273, 283-84 (2002). In addition,

22 even if the statute creates explicit rights, the plaintiff must also show that “the statute

23 manifests an intent to create not just a private right but also a private remedy.” Id. at 284.

24

The VTVPA is a regulatory statute, and the “U” visa provision does not contain an

25 express private right of action. Thus, the court must determine whether the statute

26 contains an implied private right of action. The factors the court must consider include

27

28

6 The court does not agree with this assessment of its ruling in the previous motion to dismiss.

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1 whether the plaintiff is a member of the class for whose special benefit the statute was

2 enacted; whether there is any indication of legislative intent to imply a civil remedy for the

3 plaintiff; whether it is consistent with the statute’s purpose to allow a private right; and

4 whether the cause of action is traditionally relegated to state law. Cort v. Ash, 422 U.S. 66,

5 78 (1975). The ultimate test is “whether Congress intended to create the private remedy

6 asserted.” Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16 (1979); see

7 also Alexander, 532 U.S. at 286.

8

In their prior opposition, plaintiffs argued that they clearly belong to the class for

9 whose benefit the “U” visa law was enacted. They also asserted that the “U” visa statute

10 “embodies an unmistakable, if implicit, legislative intent to create a remedy,” as it requires

11 that the “U” visa process be initiated by the crime victim (which requirement, they asserted,

12 shows Congress’ intent that the “U” visa statute confer individual rights, enforceable by a

13 private right of action). They argued further that the legislative history supported an intent

14 to create enforceable rights, as one of its stated purposes was to offer protection to alien

15 crime victims. Finally, they asserted that the claims for relief asserted in this action are a

16 matter of exclusive federal prerogative, not state law.

17

The court finds that the motion to dismiss the claims under the third and sixth causes

18 of action must be GRANTED, because plaintiffs have failed to establish that they have a

19 private right of action under the VTVPA. The parties agree that the pertinent sections of

20 the INA do not contain an express private right of action. To determine whether there is an

21 implied private right of action, the court applies the four Cort v. Ash factors. The court finds

22 that while plaintiffs satisfy the first factor, as they are clearly part of the class for whose

23 benefit the statute was enacted, see 8 U.S.C. § 1101(a)(15)(U), they do not satisfy the

24 second or third factors.

25

With regard to the second factor – whether there is any indication of legislative intent

26 to imply a civil remedy for the plaintiff – § 1101(a)(15)(U) simply sets forth eligibility

27 standards, which determine who may file for “U” visa status. The court finds no indication

28 that Congress intended to imply both a private right and a private civil remedy for aggrieved

22

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1 plaintiffs who claim that they applied for a “U” visa and were wrongfully denied one. Nor do

2 plaintiffs cite any legislative history that specifically addresses that issue.

3

The third factor – whether it is consistent with the statute’s purpose to allow a private

4 right – also does not support a finding of a private right of action. The stated purpose of the

5 statute is two-fold. First, Congress wanted to “create a new nonimmigrant visa

6 classification that will strengthen the ability of law enforcement agencies to detect,

7 investigate, and prosecute cases of domestic violence, sexual assault, trafficking of aliens,

8 and other crimes described in section 101(a)(15)(U)(iii) [of the INA] committed against

9 aliens.” Second, Congress wanted to “offer[ ] protection to victims of such offenses in

10 keeping with the humanitarian interests of the United States.” Pub. L. 106-386

11 § 1513(a)(2)(A).

12

The court does not interpret the purpose of “offering protection to” crime victims as

13 implying a private civil right of action under the statute. At most, there might be an implied

14 right to apply for the “U” visa, but the gravamen of the FAC is that plaintiffs are seeking to

15 enforce a right to receive “U” visas.

16

Plaintiffs argued in their opposition to the motion to dismiss the original complaint

17 that federal courts have entertained suits by plaintiffs under the INA seeking immigration-

18 related benefits. It is true that there are provisions within the INA that confer private rights

19 of action. However, when faced with a statutory scheme in which some provisions provide

20 for private rights of actions while others do not, the Supreme Court has found no private

21 right of action where one is not specifically articulated. Touche Ross & Co. v. Redington,

22 442 U.S. 560, 572 (1979).

23

Moreover, the cases cited by plaintiffs are distinguishable. For example, in Orantes-

24 Hernandez v. Thornburgh, 919 F.2d 549 (9th Cir. 1990), one of the three cases cited by

25 plaintiffs, the complaint alleged that INS officials and Border Patrol Agents had prevented

26 members of the class from exercising their statutory right to apply for political asylum under

27 the provisions of 8 U.S.C. § 1158(a), and had also interfered with the class members’ ability

28 to obtain counsel, a right guaranteed by 8 U.S.C. § 1362 and the due process clause. The

23

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1 Ninth Circuit affirmed the permanent injunction, based on the violations of the INA.

2

However, the court did not consider the question whether the INA contained an

3 implied private right of action. Moreover, the issue was the statutory right to apply for

4 asylum, and the statutory right to be represented by counsel – not any statutory right to be

5 granted asylum. This is a distinction that defendants make in the present motion with

6 regard to the first cause of action, but not with regard to the third and sixth causes of

7 action. Thus, the third Cort v. Ash factor does not favor a finding of an implied private right

8 of action.

9

With regard to the fourth factor – whether the cause of action is one traditionally

10 relegated to state law – the issues are purely federal law issues.

11

Defendants also argue that the third and sixth causes of action fail to state a claim

12 for which relief can be granted. They contend that in each instance, the asserted claim is

13 based on agency action committed to agency discretion by law, and that the court is

14 required to give deference to USCIS’ interpretation of the statute, so long as that

15 interpretation is reasonable. However, having found no private right of action under the

16 asserted provisions of the VTVPA, the court finds it unnecessary to address this argument.

17

4. Fourth cause of action – statutory claims

18

In the fourth cause of action, plaintiffs allege that defendants unlawfully failed to

19 issue LECs to victims of crimes investigated by DHS and its divisions, and also failed to

20 publish regulations or otherwise establish procedures governing the issuance of such

21 certifications by DHS, in violation of the APA and the VTVPA. Defendants argue that the

22 fourth cause of action should be dismissed for lack of jurisdiction and for failure to state a

23 claim.

24

Defendants first argument is that the court lacks jurisdiction over the allegations that

25 DHS and U.S. Customs and Border Protection (“USCBP”) unlawfully refused to issue LECs

26 because the actions plaintiffs complain of are actions within the unfettered discretion of

27 USCBP. Specifically, defendants assert that the decision whether or not to issue an LEC is

28 a discretionary decision within the context of 8 U.S.C. § 1252(a)(2)(B)(ii).

24

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1

Defendants’ second argument is that no plaintiff has standing to challenge USCBP’s

2 alleged failure to issue LECs or challenge DHS or USCBP’s alleged failure to publish

3 regulations or otherwise establish standards. The only plaintiffs who allege injuries that fall

4 under the fourth cause of action are Rosa Amezquita Razo, Antonio Perez Garcia,

5 Veronica Reyes Bonilla, and Melchor Vargas Silva. Amezquita Razo, Perez Garcia, and

6 Reyes Bonilla all allege that they were helpful to the USCBP’s investigation or prosecution

7 of criminal activity, and that USCBP’s refusal to issue an LEC was based on a “policy and

8 practice against issuing any certifications regardless of the merits of any individual

9 request.” Vargas Silva alleges that he cooperated with the USCBP’s investigation into a

10 claimed felonious assault perpetrated by a Border Patrol agent, but that USCBP unlawfully

11 refused to issue Vargas Silva an LEC.

12

Defendants assert that with regard to Amezquita Razo, Perez Garcia, and Reyes

13 Bonilla, USCBP officially informed plaintiffs’ counsel on May 17, 2007, that the Yuma,

14 Arizona, Border Sector of USCBP, from which plaintiffs requested LECs, was not involved

15 with the case and was therefore not able to provide the LECs, and stated further that the

16 incident had been referred to U.S. Immigration and Customs Enforcement (“ICE”). Thus,

17 defendants assert, none of these three plaintiffs can maintain a claim of injury based on

18 USCBP’s investigation and subsequent failure to provide LECs because the USCBP did

19 not in fact pursue an investigation.

20

Defendants contend further that none of the injuries claimed by any of these four

21 defendants is traceable to USCBP, where other federal, state, or local law enforcement

22 agencies may have been better positioned to address plaintiffs’ requests for LECs. In

23 addition, they argue, any court order directing the development of regulations or policies

24 concerning issuance of LECs by USCBP would not necessarily provide redress for

25 plaintiffs’ alleged injuries, as it is not clear that the result would be the issuance of LECs to

26 each of them.

27

Defendants’ third argument is that the APA precludes review of USCBP’s alleged

28 failure to issue LECs or otherwise establish standards because such actions are committed

25

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1 to agency discretion and are not legally required. Defendants assert that they are not

2 legally required to take the action that plaintiffs seek to compel, as 8 U.S.C. § 1184(p)(1)

3 grants the Secretary of DHS discretion over whether to issue LECs. While it is true,

4 defendants note, that VAWA 2005 mandated the promulgation of regulations implementing

5 the “U” visa program, there is no requirement that DHS or any of its divisions take discrete

6 action to specify the parameters of their own issuance of LECs – rather, DHS and its

7 divisions are free to determine whether to fashion their own rules of procedure in

8 discharging their duties.

9

In opposition, plaintiffs make four arguments. First, they argue that while 8 U.S.C.

10 § 1252(a)(2)(B)(ii) may insulate the exercise of discretion in certain situations from judicial

11 review, it does not remove jurisdiction to adjudicate a claim that defendants failed to

12 exercise discretion at all.

13

Second, plaintiffs contend that defendants’ blanket refusal to exercise discretion is

14 reviewable under the APA, because it is not a challenge to agency action committed to

15 agency discretion by law, but rather a challenge to an agency’s failure to exercise

16 discretion at all. They assert that where Congress has authorized an agency to issue

17 regulations, the content of the regulations may be committed to the Secretary’s discretion,

18 but this does not mean that the Secretary has unbridled discretion to refuse to issue any

19 regulations. Plaintiffs claim that in the present case, defendants’ refusal to issue law

20 enforcement certifications to the victims of crimes that defendants themselves have

21 investigated is not a discretionary decision, but is a refusal to exercise discretion at all.

22

Third, plaintiffs claim that defendants’ alleged “absolute no-certification policy”

23 violates the plain language and underlying intent of the VTVPA, because the VAWA

24 Reauthorization Act specifically directed the Secretary to “promulgate regulations to

25 implement the provisions contained in the Battered Immigrant Women Protection Act of

26 2000.” Thus, plaintiffs assert, defendants were required to issue regulations.

27

Fourth, plaintiffs argue that they have standing to challenge defendants’ refusal to

28 exercise discretion to issue U certifications. They claim that plaintiffs “have suffered an

26

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1 injury as a direct result of and have standing to challenge defendants’ demand for U

2 certifications to accompany all “U” visa applications, and simultaneous refusal to issue U

3 certifications when defendants’ agencies are the ones involved in the criminal

4 investigation.” While plaintiffs do not refer to specific individual plaintiffs, they appear to be

5 arguing that with regard to plaintiffs Amezquita Razo, Perez Garcia, and Reyes Bonilla, it is

6 irrelevant that the Border Patrol office that plaintiffs applied to for the LECs was not the

7 office that investigated the crime, because that office is part of “defendants’ agencies.”

8

The court finds that the motion must be GRANTED. First, defendants have

9 established that Rosa Amezquita Razo, Antonio Perez Garcia, and Veronica Reyes Bonilla

10 lack standing to challenge USCBP’s alleged failure to issue LECs. The Yuma, Arizona,

11 Border section of USCBP, from which Amezquita Razo, Perez Garcia, and Reyes Bonilla

12 requested LECs was not involved in the case, and plaintiffs were informed of that fact when

13 they requested the LECs. They lack standing to assert injuries based on the USCBP’s

14 investigation of the matter, as USCBP conducted no investigation.

15

The facts with regard to Melchor Vargas Silva are less clear. Defendants listed him

16 in the same category (eligible for “U” visa but denied LEC by federal law enforcement

17 authority) in their original arguments, but do not mention him in the reply brief. The facts

18 presented do not support a claim that defendants failed to exercise discretion – just that the

19 denial of the LEC was not reasonable or supported by the record. However, it is unclear

20 why the LEC request was denied as to Vargas Silva.

21

Nevertheless, the court finds that defendants did not fail to exercise discretion in

22 their denial of plaintiffs’ requests for LECs. Rather, they did exercise their discretion – by

23 denying the LEC requests.

24

Moreover, the denial of LECs is a discretionary act and not subject to judicial review.

25 Under 8 U.S.C. § 1184(p), a “U” visa applicant is required to obtain an LEC stating that the

26 applicant “has been helpful, is being helpful, or is likely to be helpful” in the investigation or

27 prosecution of criminal activity. However, the statute does not contain any mandatory

28 language with regard to actions by law enforcement officials. Specifically, there is no

27

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1 statutory directive to law enforcement officials to issue LECs.

2

Under the REAL ID Act, the courts lack all jurisdiction over challenges to “any

3 decision or action of the Attorney General or the Secretary of Homeland Security the

4 authority for which is specified under this subchapter [8 U.S.C. §§ 1151-1381] to be in the

5 discretion of the Attorney General or the Secretary of Homeland Security,” other than the

6 granting of asylum under 8 U.S.C. § 1158(a). See 8 U.S.C. § 1252(a)(2)(B); see also

7 Freeman v. Gonzalez, 444 F.3d 1031, 1037 (9th Cir. 2006). Accordingly, the court lacks

8 jurisdiction to review a claim regarding the denial of LECs.

9

5. Due process claims

10

The FAC alleges due process violations in all causes of action except the fifth.

11 Defendants contend that the due process claims should be dismissed because plaintiffs fail

12 to state a cognizable due process interest. They assert that plaintiffs’ opposition appears to

13 rely on authority that might establish a right to apply for certain immigration benefits, but not

14 to the ultimate receipt of those benefits.

15

Defendants assert that each of plaintiffs’ claims in the FAC is based on a unilateral

16 expectation of a benefit, such as the receipt of a “U” visa, a derivative visa, LPR status,

17 naturalization, or an LEC; or the promulgation of regulations regarding the issuance of law

18 enforcement certifications; or the issuance of employment authorization. Defendants argue

19 that where, as here, plaintiffs have not established a due process right to any of these

20 benefits, the court should dismiss the due process claims asserted in each of the five

21 causes of action.

22

In opposition, plaintiffs assert that they have a cognizable due process interest in

23 applying for and receiving an adjudication of their eligibility for “U” visas, and in obtaining

24 related benefits. In support, they cite Goldberg v. Kelly, 397 U.S. 254 (1970) (welfare

25 recipients had claim of entitlement to welfare payments grounded in statute defining

26 eligibility, and had right to hearing at which they might attempt to demonstrate eligibility);

27 Mallette v. Arlington County Employees’ Supplemental Retirement Sys. II, 91 F.3d 630,

28 638-39 (4th Cir. 1996) (plaintiff had due process right to apply for statutory benefits,

28

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1 collecting cases); Orantes-Hernandez, 919 F.2d at 553 (plaintiff had due process right to

2 apply for political asylum); Haitian Refugee Ctr., Inc. v. Nelson, 872 F.2d 1555, 1562 (11th

3 Cir. 1989) (plaintiffs had due process right to apply for Special Agricultural Worker amnesty

4 status); and Griffeth v. Detrich, 603 F.2d 118, 120-22 (9th Cir. 1979) (plaintiff had due

5 process right to apply for general relief).

6

The Fifth Amendment prohibits the United States from depriving persons of “life,

7 liberty, or property, without due process of law.“ U.S. Const. amend. V. As a threshold

8 requirement to any due process claim, the plaintiffs must show that they have a protected

9 property or liberty interest. Board of Regents of State Colleges v. Roth, 408 U.S. 564,

10 569-71 (1972). To establish a liberty or property interest, the plaintiff must demonstrate

11 that the Constitution or a federal or state statute grants him a protected right. See Kwai

12 Fun Wong v. United States, 373 F.3d 952, 967-68 (9th Cir. 2004).

13

The FAC does not allege that the statutes at issue in this case create a protected

14 interest. While the Supreme Court has held that non-discretionary statutes may create

15 property interests for the purpose of procedural due process, it has also ruled that “[a]

16 benefit is not a protected entitlement if government officials may grant or deny it in their

17 discretion.” Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005).

18

The court finds that the motion must be GRANTED. The statutes at issue here are

19 discretionary. Plaintiffs do not allege that they qualified for “U” visas under the statute and

20 regulations but were prevented from applying for “U” visas – just that they have not

21 received them. However, they do not allege facts or cite legal authority showing that they

22 have a constitutional due process right to receive “U” visas, nor have they even alleged

23 facts showing that their due process rights were violated during the course of the

24 application process.

25

6. Equal protection claims

26

In the fifth cause of action, plaintiffs allege that the “U” visa provision at 8 U.S.C.

27 § 1101(U)(i)(III) operates in conjunction with 8 U.S.C. § 1184(p) to deny “U” visa eligibility

28 to undocumented parents of U.S. citizen children who are the victims of crimes and who

29

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1 cooperated with law enforcement agencies in the investigation of such crimes (or whose

2 parents so cooperated), while granting “U” visa eligibility to the immigrant parents of

3 undocumented and lawful permanent resident children. Plaintiffs assert that this unequal

4 treatment violates the equal protection guarantees of the Fifth Amendment. Plaintiffs also

5 allege equal protection violations in the first through fourth and sixth causes of action.

6

Defendants argue that the equal protection claims should be dismissed because

7 none of the plaintiffs allege membership in a burdened group and none allege purposeful

8 discrimination.

9

In opposition, plaintiffs contend that the court “previously rejected this argument,”7

10 adding that they “incorporate” the arguments previously presented to the court on this issue

11 in their July 18, 2007, opposition to the previous motion to dismiss. In their opposition to

12 the previous motion, plaintiffs argued that the challenged classification scheme “burdens

13 innocent children’s right to family integrity” and therefore “must . . . be substantially related

14 to an important government interest.”

15

They asserted that because the challenged classification system under the “U” visa

16 “targets innocent children and burdens their right to family integrity,” intermediate scrutiny –

17 not the rational basis test – should be applied. Plaintiffs noted that in Plyler v. Doe, 457

18 U.S. 202, 221 (1982), the Supreme Court held that intermediate scrutiny should be applied

19 when a law discriminates against children on the basis of their immigration status and

20 burdens their interest in public education. According to plaintiffs, “the Court found

21 education sufficiently important to warrant intermediate scrutiny where the classification

22 singled out children for a status.”

23

Plaintiffs asserted that their case for intermediate scrutiny in the present case “is

24 even stronger,” as the statute burdens U.S. citizen children because they are citizens,

25 denying them the support of their parents based on “a status they acquired at birth and for

26 which they bear no responsibility.” The remainder of this excerpt from plaintiffs’ previous

27

28

7 Plaintiffs’ assertion notwithstanding, the court did not previously rule on this issue.

30

Case4:07-cv-01307-PJH Document56 Filed12/22/08 Page31 of 32

United States District Court For the Northern District of California

1 oppositions seems to be directed toward the arguments that defendants made in the

2 original motion to dismiss. Plaintiffs do not directly respond to the argument defendants

3 make in this motion.

4

The Equal Protection Clause of the Fourteenth Amendment commands that no state

5 shall “deny to any person within its jurisdiction the equal protection of the laws,” which

6 amounts to a direction that all persons who are similarly situated should be treated alike.

7 City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). The equal protection

8 component of the Fifth Amendment’s Due Process Clause imposes a similar obligation on

9 the federal government. High Tech Gays v. Defense Indus. Security Clearance Office, 895

10 F.2d 563, 570-71 (9th Cir. 1990).

11

In order to maintain an equal protection claim, plaintiffs must identify membership in

12 a classification or group whose rights have been burdened by defendants’ discriminatory

13 application of the law, or whose rights are differently burdened than those of other groups.

14 Freeman v. City of Santa Ana, 68 F.3d 1180, 1187 (9th Cir. 1995). Here, however, no

15 plaintiff has alleged that he/she/it is a victim of any purposeful discrimination. Thus,

16 plaintiffs have not stated a claim of an equal protection violation, and the motion must be

17 GRANTED.

18

Moreover, in connection with the fifth cause of action, plaintiffs claim that the VTVPA

19 discriminates against (undocumented) immigrant parents of U.S. citizen children crime

20 victims because those parents cannot obtain derivative “U” visas, while the

21 (undocumented) immigrant parents of (undocumented) immigrant children crime victims

22 can. However, none of the plaintiffs alleges that he/she is an (undocumented) immigrant

23 parent of a U.S. citizen child crime victim. Thus, no claim is stated.

24

CONCLUSION

25

In accordance with the foregoing, the court GRANTS the motion to dismiss. To the

26 extent that plaintiffs intended to allege in the second cause of action that plaintiffs Marlinda

27 Clarke, Patricia Garcia, and Blanca Rossell were unlawfully prevented from applying for

28 derivative “U” visas, a claim that presupposes that the principal beneficiaries from whom

31

Case4:07-cv-01307-PJH Document56 Filed12/22/08 Page32 of 32

United States District Court For the Northern District of California

1 they derive their derivative status applied for “U” visas, plaintiffs may amend the complaint

2 to so state. To the extent that plaintiffs believe that the pleading of additional allegations

3 will produce a cognizable claim of due process or equal protection violations, they may do

4 so. These are the only claims that plaintiffs may amend. Otherwise, the dismissal is

5 without leave to amend. Any amended complaint shall be filed no later than February 2,

6 2008.

7

8 IT IS SO ORDERED.

9 Dated: December 22, 2008 10 11

______________________________ PHYLLIS J. HAMILTON United States District Judge

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

32

 
 Case:C0a9s-1e648:0272-cv-021/32057/2-P0J1H0 DPoacguem:e1not7f95 FileIDd:0722/2453/91406 PaDgket1Eonftr5y: 11-1
FILED

NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS

FEB 25 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CATHOLIC CHARITIES CYO; INTERNATIONAL INSTITUTE OF THE EAST BAY; VOCES UNIDAS PROJECT; SANCTUARY FOR FAMILIES; DIOCESAN MIGRANT & REFUGEE SERVICES, INC.; ELIZABETH LOPEZ GOMEZ; SANDRA BUCIO; CONSTANTINA CAMPOS; MARIA ESTERVINA PEREZ; FRANCISCA RAMIREZ ALVAREZ; IRMA MORENO SANVICENTE; MARIA LUISA ARROYO TORRES; ALMA ROSA PADILLA DE HERNANDEZ; MARIA HERNANDEZ; ROSA AMEZQUITA RAZO; ANTONIO PEREZ GARCIA; VERONICA REYES BONILLA; ANDRES BUCIO PEREZ, through their next friend, Sandra Bucio; SERGIO BUCIO PEREZ, through their next friend, Sandra Bucio; MARLINDA CLARKE; PATRICIA GARCIA; BLANCA ROSSELL,

No. 09-15286 D.C. No. 3:07-cv-01307-PJH MEMORANDUM *

Plaintiffs - Appellants,

v.

JANET NAPOLITANO, Secretary, U.S.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Case:C0a9s-1e648:0272-cv-021/32057/2-P0J1H0 DPoacguem:e2not7f95 FileIDd:0722/2453/91406 PaDgket2Eonftr5y: 11-1

Department of Homeland Security; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; U.S. DEPARTMENT OF HOMELAND SECURITY,
Defendants - Appellees.

CATHOLIC CHARITIES CYO; INTERNATIONAL INSTITUTE OF THE EAST BAY; VOCES UNIDAS PROJECT; SANCTUARY FOR FAMILIES; DIOCESAN MIGRANT & REFUGEE SERVICES, INC.; ELIZABETH LOPEZ GOMEZ; SANDRA BUCIO; CONSTANTINA CAMPOS; MARIA ESTERVINA PEREZ; FRANCISCA RAMIREZ ALVAREZ; IRMA MORENO SANVICENTE; MARIA LUISA ARROYO TORRES; ALMA ROSA PADILLA DE HERNANDEZ; MARIA HERNANDEZ; ROSA AMEZQUITA RAZO; ANTONIO PEREZ GARCIA; VERONICA REYES BONILLA; ANDRES BUCIO PEREZ, through their next friend, Sandra Bucio; SERGIO BUCIO PEREZ, through their next friend, Sandra Bucio; MARLINDA CLARKE; PATRICIA GARCIA; BLANCA ROSSELL,

No. 09-16822 D.C. No. 3:07-cv-01307-PJH

Plaintiffs - Appellants,

v.

2

Case:C0a9s-1e648:0272-cv-021/32057/2-P0J1H0 DPoacguem:e3not7f95 FileIDd:0722/2453/91406 PaDgket3Eonftr5y: 11-1
JANET NAPOLITANO, Secretary, U.S. Department of Homeland Security; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; U.S. DEPARTMENT OF HOMELAND SECURITY,
Defendants - Appellees.
Appeal from the United States District Court for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding Argued and Submitted February 9, 2010 San Francisco, California
Before: KOZINSKI, Chief Judge, THOMPSON and McKEOWN, Circuit Judges.
Catholic Charities CYO, other immigrants’ rights organizations, and individual non-citizens (together, “Catholic Charities”) appeal the dismissal of their suit challenging the government’s implementation of the U visa, an immigration benefit available to certain victims of crime. As an initial matter, the defect in Catholic Charities’ premature notice of appeal has been “cured by the entry of final judgment in the underlying action.” Cato v. Fresno City, 220 F.3d 1073, 1075 (9th Cir. 2000).
3

Case:C0a9s-1e648:0272-cv-021/32057/2-P0J1H0 DPoacguem:e4not7f95 FileIDd:0722/2453/91406 PaDgket4Eonftr5y: 11-1
The district court properly dismissed the challenge to the government’s alleged delay in issuing regulations for U visa applicants and adjustment of status regulations for U visa recipients. Because none of the individual plaintiffs had been granted U visas, much less lawful permanent residence, at the time they brought suit, their claim that the agency’s delay prejudiced their eligibility for naturalization was not ripe for review. See Bova v. City of Medford, 564 F.3d 1093, 1096 (9th Cir. 2009). Catholic Charities also lacked standing to challenge the alleged prejudice from the delay because it failed to show injury-in-fact by the government’s alleged nonfeasance. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
Because standing is a jurisdictional issue, we address it with respect to the derivative U visas, despite Catholic Charities’ failure to address standing in the opening brief. We uphold the district court’s determination that Catholic Charities lacked standing to challenge plaintiffs’ ineligibility for derivative U visas because there was no allegation that the principal beneficiaries applied for U visas in the first place and, for some of the plaintiffs, the claim is moot because they received derivative visas. See Rosemere Neighborhood Ass’n v. EPA, 581 F.3d 1169, 1173 (9th Cir. 2009) (explaining that “[i]n general, when an administrative agency has performed the action sought by a plaintiff in litigation . . . the claim is moot”).
4

Case:C0a9s-1e648:0272-cv-021/32057/2-P0J1H0 DPoacguem:e5not7f95 FileIDd:0722/2453/91406 PaDgket5Eonftr5y: 11-1
We affirm the district court’s dismissal for lack of subject-matter jurisdiction of the claim that the U visa regulations violate 8 U.S.C. 1184(p). That provision does not provide a private cause of action, and Catholic Charities did not allege a cause of action under the Administrative Procedures Act. See Williams v. United Airlines, Inc., 500 F.3d 1019, 1022 (9th Cir. 2007) (outlining the criteria for a private cause of action and explaining that federal question jurisdiction lies only “when the plaintiff sues under a federal statute that creates a right of action in federal court”).
Finally, the district court correctly found that the U.S. Department of Homeland Security (“DHS”) exercised its discretion by denying plaintiffs’ individual certification requests and that 8 U.S.C. § 1252(a)(2)(B)(ii) barred review of these denials. The claim regarding the issuance of implementing regulations is moot, as DHS issued regulations that govern certification by federal law enforcement agencies in general. See 8 C.F.R. § 214.14.
AFFIRMED.
5

 
 Case: 4:07-cv-1307 As of: 02/14/2013 06:22 AM PST 1 of 24
ADRMOP,CLOSED,E−Filing
U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:07−cv−01307−PJH

Catholic Charities CYO et al v. Chertoff et al Assigned to: Hon. Phyllis J. Hamilton Case in other court: 9th Circuit, 09−15286
USCA, 09−16822 Cause: 28:2201 Declaratory Judgement Plaintiff
Catholic Charities CYO

Date Filed: 03/06/2007 Date Terminated: 08/07/2009 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant
represented by Carlos R. Holguin Center for Human Rights and Constitutional Law 256 S. Occidental Boulevard Los Angeles, CA 90057 213−388−8693 x 309 Fax: 213−386−9484 Email: crholguin@centerforhumanrights.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Anthony Schey Center for Human Rights &Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057
213−388−8693 x104 Fax: 213−386−9484 Email: pschey@centerforhumanrights.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andres Bustamante Bustamante and Associates, PLC 634 S. Spring Street Suite 910 Los Angeles, CA 90014 213−891−9009 Fax: 213−627−1655 ATTORNEY TO BE NOTICED
Angela Catherine Viramontes Center for Human Rights and Constitutional Law 256 S. Occidental Boulevard Los Angeles, CA 90057 213−388−8693 x310 Fax: 213−386−9484 TERMINATED: 04/01/2009 ATTORNEY TO BE NOTICED
Charles Rudolph Holguin 256 S. Occidental Blvd Los Angeles, CA 90057 213−388−8693x109 Email: crholguin@centerforhumanrights.org ATTORNEY TO BE NOTICED
Cynthia Lucas Center for Human Rights and

Case: 4:07-cv-1307 As of: 02/14/2013 06:22 AM PST 2 of 24
Constitutional Law 256 S. Occidental Blvd Los Angeles, CA 90057 213−388−8693 x116 Fax: 213−386−9484 Email: clucas@centerforhumanrights.org ATTORNEY TO BE NOTICED
Daniel Joseph Sharp Central American Resource Center 2845 West 7th Street Los Angeles, CA 90005−3907 213−385−7800 Fax: 213−385−1094 ATTORNEY TO BE NOTICED
Ivy Chloe Lee API Legal Outreach 1188 Franklin St Suite 202 San Francisco, CA 94109 415−567−6255 Fax: 415−567−6248 ATTORNEY TO BE NOTICED
James Parry Eyster 3475 Plymouth Road Ann Arbor, MI 48105 734−827−7929 Fax: 734−827−7925 ATTORNEY TO BE NOTICED
Julie E. Dinnerstein Sanctuary for Families Brooklyn Family Justice Center 350 Jay Street 15th Floor Brooklyn, NY 11201 718−250−5103 Fax: 718−624−4240 ATTORNEY TO BE NOTICED
Kenneth William Babcock Public Law Center 601 Civic Center Drive West Santa Ana, CA 92701 714−541−1010 Fax: 714−541−5157 ATTORNEY TO BE NOTICED
Kirsten Marie Kreymann Public Law Center 601 Civic Center Dr W Santa Ana, CA 92701 714−541−1010 Fax: 714−541−5157 ATTORNEY TO BE NOTICED
Victor Murray Hwang Asian Pacific Islander Legal Outreach 1188 Franklin St. Suite 202 San Francisco, CA 94109 415 567 6255 Fax: 415 567 6248

Case: 4:07-cv-1307 As of: 02/14/2013 06:22 AM PST 3 of 24

Email: APIVictor@gmail.com ATTORNEY TO BE NOTICED

Plaintiff International Institute of the East Bay

represented by Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles Rudolph Holguin (See above for address) ATTORNEY TO BE NOTICED

Cynthia Lucas (See above for address) ATTORNEY TO BE NOTICED

Ivy Chloe Lee (See above for address) ATTORNEY TO BE NOTICED

Victor Murray Hwang (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Voces Unidas Project

represented by Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles Rudolph Holguin (See above for address) ATTORNEY TO BE NOTICED

Cynthia Lucas (See above for address) ATTORNEY TO BE NOTICED

Ivy Chloe Lee (See above for address) ATTORNEY TO BE NOTICED

Victor Murray Hwang (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Central American Resource Center (Los Angeles) TERMINATED: 02/20/2008

represented by Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles Rudolph Holguin (See above for address) ATTORNEY TO BE NOTICED

Cynthia Lucas (See above for address) ATTORNEY TO BE NOTICED

Ivy Chloe Lee (See above for address)

Case: 4:07-cv-1307 As of: 02/14/2013 06:22 AM PST 4 of 24

ATTORNEY TO BE NOTICED

Victor Murray Hwang (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Hermandad Mexicana Nacional TERMINATED: 09/18/2007

represented by Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cynthia Lucas (See above for address) ATTORNEY TO BE NOTICED

Ivy Chloe Lee (See above for address) ATTORNEY TO BE NOTICED

Victor Murray Hwang (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Sanctuary for Families

represented by Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles Rudolph Holguin (See above for address) ATTORNEY TO BE NOTICED

Cynthia Lucas (See above for address) ATTORNEY TO BE NOTICED

Ivy Chloe Lee (See above for address) ATTORNEY TO BE NOTICED

Victor Murray Hwang (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Friendly House (Phoenix) TERMINATED: 02/20/2008

represented by Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles Rudolph Holguin (See above for address) ATTORNEY TO BE NOTICED

Cynthia Lucas (See above for address) ATTORNEY TO BE NOTICED

Ivy Chloe Lee (See above for address) ATTORNEY TO BE NOTICED

Case: 4:07-cv-1307 As of: 02/14/2013 06:22 AM PST 5 of 24

Plaintiff Diocesan Migrant &Refugee Services, Inc.
Plaintiff Sergio Bucio Perez through their next friend, Sandra Bucio
Plaintiff Andres Bucio Perez Through Their Next of Friend, Sandra Bucio

Victor Murray Hwang (See above for address) ATTORNEY TO BE NOTICED
represented by Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Rudolph Holguin (See above for address) ATTORNEY TO BE NOTICED
Cynthia Lucas (See above for address) ATTORNEY TO BE NOTICED
Ivy Chloe Lee (See above for address) ATTORNEY TO BE NOTICED
Victor Murray Hwang (See above for address) ATTORNEY TO BE NOTICED
represented by Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Rudolph Holguin (See above for address) ATTORNEY TO BE NOTICED
Cynthia Lucas (See above for address) ATTORNEY TO BE NOTICED
Ivy Chloe Lee (See above for address) ATTORNEY TO BE NOTICED
Victor Murray Hwang (See above for address) ATTORNEY TO BE NOTICED
represented by Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Rudolph Holguin (See above for address) ATTORNEY TO BE NOTICED
Cynthia Lucas (See above for address) ATTORNEY TO BE NOTICED

Case: 4:07-cv-1307 As of: 02/14/2013 06:22 AM PST 6 of 24

Ivy Chloe Lee (See above for address) ATTORNEY TO BE NOTICED

Victor Murray Hwang (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Xiomara Castro TERMINATED: 02/20/2008

represented by Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles Rudolph Holguin (See above for address) ATTORNEY TO BE NOTICED

Cynthia Lucas (See above for address) ATTORNEY TO BE NOTICED

Ivy Chloe Lee (See above for address) ATTORNEY TO BE NOTICED

Victor Murray Hwang (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Ramona Quintero TERMINATED: 02/20/2008

represented by Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles Rudolph Holguin (See above for address) ATTORNEY TO BE NOTICED

Cynthia Lucas (See above for address) ATTORNEY TO BE NOTICED

Ivy Chloe Lee (See above for address) ATTORNEY TO BE NOTICED

Victor Murray Hwang (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Luis R. Nunez Hernandez TERMINATED: 02/20/2008

represented by Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles Rudolph Holguin (See above for address) ATTORNEY TO BE NOTICED

Cynthia Lucas

Case: 4:07-cv-1307 As of: 02/14/2013 06:22 AM PST 7 of 24

(See above for address) ATTORNEY TO BE NOTICED

Ivy Chloe Lee (See above for address) ATTORNEY TO BE NOTICED

Victor Murray Hwang (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Ricardo Nunez Hernandez TERMINATED: 02/20/2008

represented by Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles Rudolph Holguin (See above for address) ATTORNEY TO BE NOTICED

Cynthia Lucas (See above for address) ATTORNEY TO BE NOTICED

Ivy Chloe Lee (See above for address) ATTORNEY TO BE NOTICED

Victor Murray Hwang (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Elizabeth Lopez Gomez TERMINATED: 02/20/2008

represented by Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles Rudolph Holguin (See above for address) ATTORNEY TO BE NOTICED

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Victor Murray Hwang (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Maria Estervina Perez

represented by Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles Rudolph Holguin (See above for address)

Case: 4:07-cv-1307 As of: 02/14/2013 06:22 AM PST 8 of 24

ATTORNEY TO BE NOTICED

Cynthia Lucas (See above for address) ATTORNEY TO BE NOTICED

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Victor Murray Hwang (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Giovana Saavedra TERMINATED: 02/20/2008

represented by Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles Rudolph Holguin (See above for address) ATTORNEY TO BE NOTICED

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Ivy Chloe Lee (See above for address) ATTORNEY TO BE NOTICED

Victor Murray Hwang (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Eleuterio Rodriguez Ruiz TERMINATED: 02/20/2008

represented by Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles Rudolph Holguin (See above for address) ATTORNEY TO BE NOTICED

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Victor Murray Hwang (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Felipe Sanchez Martinez TERMINATED: 02/20/2008

represented by Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 4:07-cv-1307 As of: 02/14/2013 06:22 AM PST 9 of 24

Plaintiff Francisca Ramirez Alvarez
Plaintiff Constantina Campos
Plaintiff Irma Moreno Sanvicente

Charles Rudolph Holguin (See above for address) ATTORNEY TO BE NOTICED
Cynthia Lucas (See above for address) ATTORNEY TO BE NOTICED
Ivy Chloe Lee (See above for address) ATTORNEY TO BE NOTICED
Victor Murray Hwang (See above for address) ATTORNEY TO BE NOTICED
represented by Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Rudolph Holguin (See above for address) ATTORNEY TO BE NOTICED
Cynthia Lucas (See above for address) ATTORNEY TO BE NOTICED
Ivy Chloe Lee (See above for address) ATTORNEY TO BE NOTICED
Victor Murray Hwang (See above for address) ATTORNEY TO BE NOTICED
represented by Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Rudolph Holguin (See above for address) ATTORNEY TO BE NOTICED
Cynthia Lucas (See above for address) ATTORNEY TO BE NOTICED
Ivy Chloe Lee (See above for address) ATTORNEY TO BE NOTICED
Victor Murray Hwang (See above for address) ATTORNEY TO BE NOTICED
represented by

Case: 4:07-cv-1307 As of: 02/14/2013 06:22 AM PST 10 of 24

Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Ivy Chloe Lee (See above for address) ATTORNEY TO BE NOTICED

Victor Murray Hwang (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Rosa Galaviz TERMINATED: 02/20/2008

represented by Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles Rudolph Holguin (See above for address) ATTORNEY TO BE NOTICED

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Victor Murray Hwang (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Maria Luisa Arroyo Torres

represented by Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Victor Murray Hwang (See above for address) ATTORNEY TO BE NOTICED

Case: 4:07-cv-1307 As of: 02/14/2013 06:22 AM PST 11 of 24

Plaintiff Juan Rocha Rocha Francisco TERMINATED: 02/20/2008
Plaintiff Jorge Dominguez Rivera TERMINATED: 02/20/2008
Plaintiff Sandra Bucio

represented by Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Rudolph Holguin (See above for address) ATTORNEY TO BE NOTICED
Cynthia Lucas (See above for address) ATTORNEY TO BE NOTICED
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Victor Murray Hwang (See above for address) ATTORNEY TO BE NOTICED
represented by Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Rudolph Holguin (See above for address) ATTORNEY TO BE NOTICED
Cynthia Lucas (See above for address) ATTORNEY TO BE NOTICED
Ivy Chloe Lee (See above for address) ATTORNEY TO BE NOTICED
Victor Murray Hwang (See above for address) ATTORNEY TO BE NOTICED
represented by Carlos R. Holguin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Anthony Schey Center for Human Rights &Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213−388−8693 x104 Fax: 213−386−9484 Email: pschey@centerforhumanrights.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angela Catherine Viramontes

Case: 4:07-cv-1307 As of: 02/14/2013 06:22 AM PST 12 of 24

(See above for address) TERMINATED: 04/01/2009 ATTORNEY TO BE NOTICED

Charles Rudolph Holguin (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Alma Rosa Padilla De Hernandez

represented by Carlos R. Holguin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angela Catherine Viramontes (See above for address) TERMINATED: 04/01/2009 ATTORNEY TO BE NOTICED

Charles Rudolph Holguin (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Maria Hernandez

represented by Carlos R. Holguin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angela Catherine Viramontes (See above for address) TERMINATED: 04/01/2009 ATTORNEY TO BE NOTICED

Charles Rudolph Holguin (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Rosa Amezquita Razo

represented by Carlos R. Holguin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angela Catherine Viramontes (See above for address) TERMINATED: 04/01/2009 ATTORNEY TO BE NOTICED

Case: 4:07-cv-1307 As of: 02/14/2013 06:22 AM PST 13 of 24

Plaintiff Antonio Perez Garcia
Plaintiff Veronica Reyes Bonilla
Plaintiff Marlinda Clarke

Charles Rudolph Holguin (See above for address) ATTORNEY TO BE NOTICED
represented by Carlos R. Holguin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
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Charles Rudolph Holguin (See above for address) ATTORNEY TO BE NOTICED
represented by Carlos R. Holguin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angela Catherine Viramontes (See above for address) TERMINATED: 04/01/2009 ATTORNEY TO BE NOTICED
Charles Rudolph Holguin (See above for address) ATTORNEY TO BE NOTICED
represented by Carlos R. Holguin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angela Catherine Viramontes (See above for address) TERMINATED: 04/01/2009 ATTORNEY TO BE NOTICED
Charles Rudolph Holguin (See above for address)

Case: 4:07-cv-1307 As of: 02/14/2013 06:22 AM PST 14 of 24

ATTORNEY TO BE NOTICED

Plaintiff Patricia Garcia

represented by Carlos R. Holguin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angela Catherine Viramontes (See above for address) TERMINATED: 04/01/2009 ATTORNEY TO BE NOTICED

Charles Rudolph Holguin (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Blanca Rossell

represented by Carlos R. Holguin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angela Catherine Viramontes (See above for address) TERMINATED: 04/01/2009 ATTORNEY TO BE NOTICED

Charles Rudolph Holguin (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Michael Chertoff Secretary, U.S. Department of Homeland Security

represented by Ila Casy Deiss United States Attorney's Office Northern District of California 450 Golden Gate Avenue P. O. Box 36055 San Francisco, CA 94102 415−436−7124 Fax: 415−436−7169 Email: ila.deiss@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

Case: 4:07-cv-1307 As of: 02/14/2013 06:22 AM PST 15 of 24

202−616−1246 Fax: 202−233−0397 Email: jeffrey.robins@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Victor M. Lawrence U.S. Department of Justice P.O. Box 878, Ben Franklin Station Washington, D.C., DC 20044 202−305−8788 Fax: 202−233−0397 Email: victor.lawrence@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
United States Citizenship and Immigration Services

represented by Ila Casy Deiss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey S. Robins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Victor M. Lawrence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant U.S. Department of Homeland Security

represented by Ila Casy Deiss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey S. Robins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Victor M. Lawrence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/06/2007

# Docket Text
1 COMPLAINT against Michael Chertoff, United States Citizenship and Immigration Services, U.S. Department of Homeland Security ( Filing fee $ 350, receipt number 34611003780). Filed byEleuterio Rodriguez Ruiz, Felipe Sanchez Martinez, Francisca Ramirez Alvarez, Constantina Campos, Irma Moreno Sanvicente, Rosa Galaviz, Maria Luisa Arroyo, Juan Rocha Rocha Francisco, Voces Unidas Project, Jorge Dominguez Rivera, Central American Resource Center, Hermandad Mexicana Nacional, Catholic Charities CYO, Sanctuary for Families, Friendly House, Diocesan Migrant &Refugee Services, Inc. of El Paso, Sergio Bucio Perez, Andres Bucio Perez, Xiomara Castro, Ramona Quintero, Luis R. Nunez Hernandez, Ricardo Nunez Hernandez, Elizabeth Lopez Gomez, International Institute of the East Bay, Maria Estervina Perez, Giovana Saavedra. (far, COURT STAFF) (Filed on 3/6/2007) Additional attachment(s) added on 11/5/2007 (far, COURT STAFF). (Entered: 03/09/2007)

Case: 4:07-cv-1307 As of: 02/14/2013 06:22 AM PST 16 of 24

03/06/2007 03/06/2007 03/06/2007 03/06/2007 03/21/2007 03/22/2007 03/23/2007 03/28/2007 04/10/2007
04/10/2007
04/10/2007
04/10/2007

2 ADR SCHEDULING ORDER: Case Management Statement due by 6/21/2007. Case Management Conference set for 6/28/2007 02:30 PM. (Attachments: # 1)(far, COURT STAFF) (Filed on 3/6/2007) (Entered: 03/09/2007)
CASE DESIGNATED for Electronic Filing. (far, COURT STAFF) (Filed on 3/6/2007) (Entered: 03/09/2007)
Summons Issued as to Michael Chertoff, United States Citizenship and Immigration Services, U.S. Department of Homeland Security. (far, COURT STAFF) (Filed on 3/6/2007) (Entered: 03/09/2007)
3 Certificate of Interested Entities filed by Plaintiffs. (far, COURT STAFF) (Filed on 3/6/2007) Additional attachment(s) added on 11/2/2007 (far, COURT STAFF). (Entered: 03/09/2007)
4 NOTICE of Appearance by Ila Casy Deiss (Deiss, Ila) (Filed on 3/21/2007) (Entered: 03/21/2007)
5 CERTIFICATE OF SERVICE by United States Citizenship and Immigration Services, U.S. Department of Homeland Security (Deiss, Ila) (Filed on 3/22/2007) (Entered: 03/22/2007)
6 NOTICE of Appearance by Victor M. Lawrence (Lawrence, Victor) (Filed on 3/23/2007) (Entered: 03/23/2007)
7 NOTICE of Appearance by Jeffrey S. Robins (Robins, Jeffrey) (Filed on 3/28/2007) (Entered: 03/28/2007)
8 CERTIFICATE OF SERVICE by Eleuterio Rodriguez Ruiz, Felipe Sanchez Martinez, Francisca Ramirez Alvarez, Constantina Campos, Irma Moreno Sanvicente, Rosa Galaviz, Maria Luisa Arroyo, Juan Rocha Rocha Francisco, Voces Unidas Project, Jorge Dominguez Rivera, Central American Resource Center, Hermandad Mexicana Nacional, Catholic Charities CYO, Sanctuary for Families, Friendly House, Diocesan Migrant &Refugee Services, Inc. of El Paso, Sergio Bucio Perez, Andres Bucio Perez, Xiomara Castro, Ramona Quintero, Luis R. Nunez Hernandez, Ricardo Nunez Hernandez, Elizabeth Lopez Gomez, International Institute of the East Bay, Maria Estervina Perez, Giovana Saavedra re 1 Complaint,,,, Summons Issued, Service of Elsie Sato, Civil Process Clerk, U.S. Attorney's Office (Lucas, Cynthia) (Filed on 4/10/2007) (Entered: 04/10/2007)
9 CERTIFICATE OF SERVICE by Eleuterio Rodriguez Ruiz, Felipe Sanchez Martinez, Francisca Ramirez Alvarez, Constantina Campos, Irma Moreno Sanvicente, Rosa Galaviz, Maria Luisa Arroyo, Juan Rocha Rocha Francisco, Voces Unidas Project, Jorge Dominguez Rivera, Central American Resource Center, Hermandad Mexicana Nacional, Catholic Charities CYO, Sanctuary for Families, Friendly House, Diocesan Migrant &Refugee Services, Inc. of El Paso, Sergio Bucio Perez, Andres Bucio Perez, Xiomara Castro, Ramona Quintero, Luis R. Nunez Hernandez, Ricardo Nunez Hernandez, Elizabeth Lopez Gomez, International Institute of the East Bay, Maria Estervina Perez, Giovana Saavedra re 1 Complaint,,,, Summons Issued, Served upon Office of the Attorney General, US Dept. of Justice (Lucas, Cynthia) (Filed on 4/10/2007) (Entered: 04/10/2007)
10 CERTIFICATE OF SERVICE by Eleuterio Rodriguez Ruiz, Felipe Sanchez Martinez, Francisca Ramirez Alvarez, Constantina Campos, Irma Moreno Sanvicente, Rosa Galaviz, Maria Luisa Arroyo, Juan Rocha Rocha Francisco, Voces Unidas Project, Jorge Dominguez Rivera, Central American Resource Center, Hermandad Mexicana Nacional, Catholic Charities CYO, Sanctuary for Families, Friendly House, Diocesan Migrant &Refugee Services, Inc. of El Paso, Sergio Bucio Perez, Andres Bucio Perez, Xiomara Castro, Ramona Quintero, Luis R. Nunez Hernandez, Ricardo Nunez Hernandez, Elizabeth Lopez Gomez, International Institute of the East Bay, Maria Estervina Perez, Giovana Saavedra re 1 Complaint,,,, Summons Issued, Served upon Michael Certoff, US Dept. of Homeland Security (Lucas, Cynthia) (Filed on 4/10/2007) (Entered: 04/10/2007)
11 CERTIFICATE OF SERVICE by Eleuterio Rodriguez Ruiz, Felipe Sanchez Martinez, Francisca Ramirez Alvarez, Constantina Campos, Irma Moreno Sanvicente, Rosa Galaviz, Maria Luisa Arroyo, Juan Rocha Rocha Francisco, Voces Unidas Project, Jorge Dominguez Rivera, Central American Resource

Case: 4:07-cv-1307 As of: 02/14/2013 06:22 AM PST 17 of 24

04/18/2007
04/18/2007
05/03/2007 05/07/2007 05/09/2007 05/16/2007
05/18/2007 05/29/2007

Center, Hermandad Mexicana Nacional, Catholic Charities CYO, Sanctuary for Families, Friendly House, Diocesan Migrant &Refugee Services, Inc. of El Paso, Sergio Bucio Perez, Andres Bucio Perez, Xiomara Castro, Ramona Quintero, Luis R. Nunez Hernandez, Ricardo Nunez Hernandez, Elizabeth Lopez Gomez, International Institute of the East Bay, Maria Estervina Perez, Giovana Saavedra re 1 Complaint,,,, Summons Issued, Served upon Emilio Gonzalez, USCIS Director (Lucas, Cynthia) (Filed on 4/10/2007) (Entered: 04/10/2007)
12 First MOTION to Certify Class and Memorandum of Points and Authorities filed by Eleuterio Rodriguez Ruiz, Felipe Sanchez Martinez, Francisca Ramirez Alvarez, Constantina Campos, Irma Moreno Sanvicente, Rosa Galaviz, Maria Luisa Arroyo, Juan Rocha Rocha Francisco, Voces Unidas Project, Jorge Dominguez Rivera, Central American Resource Center, Hermandad Mexicana Nacional, Catholic Charities CYO, Sanctuary for Families, Friendly House, Diocesan Migrant &Refugee Services, Inc. of El Paso, Sergio Bucio Perez, Andres Bucio Perez, Xiomara Castro, Ramona Quintero, Luis R. Nunez Hernandez, Ricardo Nunez Hernandez, Elizabeth Lopez Gomez, International Institute of the East Bay, Maria Estervina Perez, Giovana Saavedra. Motion Hearing set for 5/23/2007 09:00 AM in Courtroom 3, 17th Floor, San Francisco. (Schey, Peter) (Filed on 4/18/2007) (Entered: 04/18/2007)
13 Proposed Order re 12 First MOTION to Certify Class and Memorandum of Points and Authorities by Eleuterio Rodriguez Ruiz, Felipe Sanchez Martinez, Francisca Ramirez Alvarez, Constantina Campos, Irma Moreno Sanvicente, Rosa Galaviz, Maria Luisa Arroyo, Juan Rocha Rocha Francisco, Voces Unidas Project, Jorge Dominguez Rivera, Central American Resource Center, Hermandad Mexicana Nacional, Catholic Charities CYO, Sanctuary for Families, Friendly House, Diocesan Migrant &Refugee Services, Inc. of El Paso, Sergio Bucio Perez, Andres Bucio Perez, Xiomara Castro, Ramona Quintero, Luis R. Nunez Hernandez, Ricardo Nunez Hernandez, Elizabeth Lopez Gomez, International Institute of the East Bay, Maria Estervina Perez, Giovana Saavedra. (Schey, Peter) (Filed on 4/18/2007) (Entered: 04/18/2007)
14 Ex Parte Application by Defendants Seeking Additional Time to File Opposition to Plaintiffs' Motion for Class Certification; and [Proposed] Order filed by Michael Chertoff, United States Citizenship and Immigration Services, U.S. Department of Homeland Security. (Deiss, Ila) (Filed on 5/3/2007) (Entered: 05/03/2007)
15 CLERK'S NOTICE TO ALL PARTIES WITH HEARINGS SET FOR MAY 23, 2007 AT 9:00 A.M. AND MAY 30, 2007 AT 9:00 A.M. (nah, COURT STAFF) (Filed on 5/7/2007) (Entered: 05/07/2007)
16 ORDER re 14 Application by Defendants Seeking Additional Time to File Opposition to Plaintiffs' Motion for Class Certification; and 12 First MOTION to Certify Class; ORDER Vacating Hearing Date. Signed by Judge Hamilton on 5/9/2007. (pjhlc1, COURT STAFF) (Filed on 5/9/2007) (Entered: 05/09/2007)
17 STIPULATION re 16 Order, RE: Extension to File Answer or Motion to Dismiss and Continue Motion for Class Certification by Eleuterio Rodriguez Ruiz, Felipe Sanchez Martinez, Francisca Ramirez Alvarez, Constantina Campos, Irma Moreno Sanvicente, Rosa Galaviz, Maria Luisa Arroyo, Juan Rocha Rocha Francisco, Voces Unidas Project, Jorge Dominguez Rivera, Central American Resource Center, Hermandad Mexicana Nacional, Catholic Charities CYO, Sanctuary for Families, Friendly House, Diocesan Migrant &Refugee Services, Inc. of El Paso, Sergio Bucio Perez, Andres Bucio Perez, Xiomara Castro, Ramona Quintero, Luis R. Nunez Hernandez, Ricardo Nunez Hernandez, Elizabeth Lopez Gomez, International Institute of the East Bay, Maria Estervina Perez, Giovana Saavedra. (Lucas, Cynthia) (Filed on 5/16/2007) (Entered: 05/16/2007)
18 ORDER re 17 Stipulation. Signed by Judge Hamilton on 5/18/2007. (pjhlc1, COURT STAFF) (Filed on 5/18/2007) (Entered: 05/18/2007)
19 MOTION to Dismiss filed by Michael Chertoff, United States Citizenship and Immigration Services, U.S. Department of Homeland Security. Motion Hearing set for 8/1/2007 09:00 AM in Courtroom 3, 17th Floor, San Francisco. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B# 3 Exhibit Exhibit C# 4 Exhibit Exhibit D# 5 Exhibit Exhibit E# 6 Exhibit Exhibit F# 7 Exhibit Exhibit G)(Robins, Jeffrey)

Case: 4:07-cv-1307 As of: 02/14/2013 06:22 AM PST 18 of 24

05/30/2007 05/31/2007 07/03/2007 07/11/2007 07/12/2007 07/18/2007
07/19/2007
07/19/2007
07/23/2007 07/24/2007

(Filed on 5/29/2007) (Entered: 05/29/2007)
20 Declaration of Jeffrey S. Robins in Support of 19 MOTION to Dismiss filed byMichael Chertoff, United States Citizenship and Immigration Services, U.S. Department of Homeland Security. (Related document(s) 19 ) (Robins, Jeffrey) (Filed on 5/30/2007) (Entered: 05/30/2007)
21 ERRATA re 19 MOTION to Dismiss Exhibit D by Michael Chertoff, United States Citizenship and Immigration Services, U.S. Department of Homeland Security. (Robins, Jeffrey) (Filed on 5/31/2007) (Entered: 05/31/2007)
22 STATUS REPORT by Michael Chertoff, United States Citizenship and Immigration Services, U.S. Department of Homeland Security. (Attachments: # 1 Exhibit Declaration of Jeffrey S. Robins# 2 Exhibit Exhibit 1# 3 Exhibit Exhibit 2# 4 Exhibit Exhibit 3)(Robins, Jeffrey) (Filed on 7/3/2007) (Entered: 07/03/2007)
23 STIPULATION and [Proposed] Order by Voces Unidas Project. (Lucas, Cynthia) (Filed on 7/11/2007) (Entered: 07/11/2007)
24 STIPULATION AND ORDER RE: ONE WEEK EXTENSION TO FILE OPPOSITION TO MOTION TO DISMISS, REPLY TO OPPOSITION TO MOTION TO DISMISS AND OF HEARING ON MOTION TO DISMISS re 23 Stipulation filed by Voces Unidas Project. Motion Hearing set for 8/8/2007 09:00 AM. Signed by Judge Phyllis J. Hamilton on 7/12/07. (nah, COURT STAFF) (Filed on 7/12/2007) (Entered: 07/12/2007)
25 MOTION for Leave to File Excess Pages filed by Eleuterio Rodriguez Ruiz, Felipe Sanchez Martinez, Francisca Ramirez Alvarez, Constantina Campos, Irma Moreno Sanvicente, Rosa Galaviz, Maria Luisa Arroyo, Juan Rocha Rocha Francisco, Voces Unidas Project, Jorge Dominguez Rivera, Central American Resource Center, Hermandad Mexicana Nacional, Catholic Charities CYO, Sanctuary for Families, Friendly House, Diocesan Migrant &Refugee Services, Inc. of El Paso, Sergio Bucio Perez, Andres Bucio Perez, Xiomara Castro, Ramona Quintero, Luis R. Nunez Hernandez, Ricardo Nunez Hernandez, Elizabeth Lopez Gomez, International Institute of the East Bay, Maria Estervina Perez, Giovana Saavedra. (Lucas, Cynthia) (Filed on 7/18/2007) (Entered: 07/18/2007)
26 OPPOSITION to 19 MOTION to Dismiss filed byEleuterio Rodriguez Ruiz, Felipe Sanchez Martinez, Francisca Ramirez Alvarez, Constantina Campos, Irma Moreno Sanvicente, Rosa Galaviz, Maria Luisa Arroyo, Juan Rocha Rocha Francisco, Voces Unidas Project, Jorge Dominguez Rivera, Central American Resource Center, Hermandad Mexicana Nacional, Catholic Charities CYO, Sanctuary for Families, Friendly House, Diocesan Migrant &Refugee Services, Inc. of El Paso, Sergio Bucio Perez, Andres Bucio Perez, Xiomara Castro, Ramona Quintero, Luis R. Nunez Hernandez, Ricardo Nunez Hernandez, Elizabeth Lopez Gomez, International Institute of the East Bay, Maria Estervina Perez, Giovana Saavedra. (Lucas, Cynthia) (Filed on 7/19/2007) Modified on 7/20/2007 (far, COURT STAFF). (Entered: 07/19/2007)
27 NOTICE by Eleuterio Rodriguez Ruiz, Felipe Sanchez Martinez, Francisca Ramirez Alvarez, Constantina Campos, Irma Moreno Sanvicente, Rosa Galaviz, Maria Luisa Arroyo, Juan Rocha Rocha Francisco, Voces Unidas Project, Jorge Dominguez Rivera, Central American Resource Center, Hermandad Mexicana Nacional, Catholic Charities CYO, Sanctuary for Families, Friendly House, Diocesan Migrant &Refugee Services, Inc. of El Paso, Sergio Bucio Perez, Andres Bucio Perez, Xiomara Castro, Ramona Quintero, Luis R. Nunez Hernandez, Ricardo Nunez Hernandez, Elizabeth Lopez Gomez, International Institute of the East Bay, Maria Estervina Perez, Giovana Saavedra re 26 Memorandum in Opposition,, Filing of Declarations (Attachments: # 1 Affidavit Declaration of Peter Schey# 2 Affidavit Declaration of Cynthia Lucas)(Lucas, Cynthia) (Filed on 7/19/2007) (Entered: 07/19/2007)
28 ORDER by Judge Hamilton granting 25 Motion for Leave to File Excess Pages (pjhlc1, COURT STAFF) (Filed on 7/23/2007) (Entered: 07/23/2007)
29 STIPULATION and PROPOSED ORDER RE: ONE ADDITIONAL WEEK EXTENSION TO FILE REPLY TO OPPOSITION TO MOTION TO DISMISS

Case: 4:07-cv-1307 As of: 02/14/2013 06:22 AM PST 19 of 24

07/25/2007
08/01/2007 08/15/2007 08/15/2007 08/16/2007 08/16/2007 09/14/2007
09/17/2007 09/18/2007 10/10/2007 10/15/2007 10/25/2007 11/15/2007

AND OF HEARING ON MOTION TO DISMISS by Michael Chertoff, United States Citizenship and Immigration Services, U.S. Department of Homeland Security. (Robins, Jeffrey) (Filed on 7/24/2007) Modified on 7/25/2007 (far, COURT STAFF). (Entered: 07/24/2007)
30 STIPULATION AND ORDER RE: ONE ADDITIONAL WEEK EXTENSION TO FILE REPLY TO OPPOSITION TO MOTION TO DISMISS AND OF HEARING ON MOTION TO DISMISS re 29 Stipulation filed by U.S. Department of Homeland Security, Michael Chertoff, United States Citizenship and Immigration Services. Motion Hearing set for 8/15/2007 09:00 AM. Signed by Judge Phyllis J. Hamilton on 7/25/07. (nah, COURT STAFF) (Filed on 7/25/2007) (Entered: 07/25/2007)
31 Reply to Opposition filed byMichael Chertoff, United States Citizenship and Immigration Services, U.S. Department of Homeland Security. (Robins, Jeffrey) (Filed on 8/1/2007) (Entered: 08/01/2007)
32 Minute Entry: Motion Hearing held on 8/15/2007 before Phyllis J. Hamilton (Date Filed: 8/15/2007) re 19 MOTION to Dismiss filed by U.S. Department of Homeland Security, Michael Chertoff, United States Citizenship and Immigration Services. (Court Reporter Sahar McVickar.) (nah, COURT STAFF) (Date Filed: 8/15/2007) (Entered: 08/15/2007)
Set Deadlines/Hearings: Case Management Statement due by 1/10/2008. Case Management Conference set for 1/17/2008 02:30 PM. (nah, COURT STAFF) (Filed on 8/15/2007) (Entered: 08/15/2007)
33 ORDER by Judge Hamilton granting in part and denying in part 19 Motion to Dismiss (pjhlc4, COURT STAFF) (Filed on 8/16/2007) (Entered: 08/16/2007)
Set Deadlines/Hearings: Case Management Conference set for 1/17/2008 02:30 PM. (far, COURT STAFF) (Filed on 8/16/2007) (Entered: 08/17/2007)
34 STIPULATION to Dismiss HMN and Proposed Order by Eleuterio Rodriguez Ruiz, Felipe Sanchez Martinez, Francisca Ramirez Alvarez, Constantina Campos, Irma Moreno Sanvicente, Rosa Galaviz, Maria Luisa Arroyo, Juan Rocha Rocha Francisco, Jorge Dominguez Rivera, Michael Chertoff, Central American Resource Center, Hermandad Mexicana Nacional, Catholic Charities CYO, Sanctuary for Families, Friendly House, Diocesan Migrant &Refugee Services, Inc. of El Paso, Sergio Bucio Perez, Andres Bucio Perez, Xiomara Castro, Ramona Quintero, Luis R. Nunez Hernandez, Ricardo Nunez Hernandez, Elizabeth Lopez Gomez, International Institute of the East Bay, Maria Estervina Perez, Giovana Saavedra. (Holguin, Charles) (Filed on 9/14/2007) (Entered: 09/14/2007)
35 STATUS REPORT by Michael Chertoff, United States Citizenship and Immigration Services, U.S. Department of Homeland Security. (Robins, Jeffrey) (Filed on 9/17/2007) (Entered: 09/17/2007)
36 STIPULATION AND ORDER TO DISMISS PLAINTIFF HERMANDAD MEXICANA NACIONAL re 34 Stipulation. Signed by Judge Phyllis J. Hamilton on 9/18/07. (nah, COURT STAFF) (Filed on 9/18/2007) Modified on 9/18/2007 (nah, COURT STAFF). (Entered: 09/18/2007)
37 ANSWER to 1 Complaint by Michael Chertoff, United States Citizenship and Immigration Services, U.S. Department of Homeland Security. (Robins, Jeffrey) (Filed on 10/10/2007) Modified on 10/11/2007 (far, COURT STAFF). (Entered: 10/10/2007)
38 STATUS REPORT by Michael Chertoff, United States Citizenship and Immigration Services, U.S. Department of Homeland Security. (Robins, Jeffrey) (Filed on 10/15/2007) (Entered: 10/15/2007)
39 CLERK'S NOTICE re: Complaint 1 and Certificate of Interested Entities 3 ; Failure to E−File and/or Failure to Register as an E−Filer (far, COURT STAFF) (Filed on 10/25/2007) (Entered: 10/25/2007)
40 STATUS REPORT by Michael Chertoff, United States Citizenship and Immigration Services, U.S. Department of Homeland Security. (Robins, Jeffrey)

Case: 4:07-cv-1307 As of: 02/14/2013 06:22 AM PST 20 of 24

12/17/2007 01/10/2008 01/15/2008 01/17/2008 02/20/2008 03/11/2008
03/18/2008 03/31/2008
04/01/2008 04/01/2008 04/16/2008

(Filed on 11/15/2007) (Entered: 11/15/2007)
41 STATUS REPORT by Michael Chertoff, United States Citizenship and Immigration Services, U.S. Department of Homeland Security. (Robins, Jeffrey) (Filed on 12/17/2007) (Entered: 12/17/2007)
42 JOINT CASE MANAGEMENT STATEMENT filed by Michael Chertoff, United States Citizenship and Immigration Services, U.S. Department of Homeland Security. (Robins, Jeffrey) (Filed on 1/10/2008) (Entered: 01/10/2008)
43 STATUS REPORT by Michael Chertoff, United States Citizenship and Immigration Services, U.S. Department of Homeland Security. (Robins, Jeffrey) (Filed on 1/15/2008) (Entered: 01/15/2008)
44 Minute Entry: Case Management Conference held on 1/17/2008 before Phyllis J. Hamilton (Date Filed: 1/17/2008). (Court Reporter None.) (fj, COURT STAFF) (Date Filed: 1/17/2008) (Entered: 01/17/2008)
45 FIRST AMENDED CLASS ACTION COMPLAINT against Michael Chertoff, United States Citizenship and Immigration Services, U.S. Department of Homeland Security. Filed by Plaintiffs. (Schey, Peter) (Filed on 2/20/2008) Modified on 2/25/2008 (far, COURT STAFF). Modified on 3/12/2008 (far, COURT STAFF). (Entered: 02/20/2008)
46 MOTION for Extension of Time to File 45 Plaintiffs' First Amended Complaint and PROPOSED ORDER filed by Michael Chertoff, United States Citizenship and Immigration Services, U.S. Department of Homeland Security. (Attachments: # 1 Exhibit Declaration of Ila C. Deiss, # 2 Exhibit Declaration of Jeffrey S. Robins)(Robins, Jeffrey) (Filed on 3/11/2008) Modified on 3/12/2008 (far, COURT STAFF). (Entered: 03/11/2008)
47 ORDER GRANTING MOTION FOR EXTENSION OF TIME TO FILE RESPONSIVE PLEADING by Judge Phyllis J. Hamilton granting 46 Motion for Extension of Time to File (nah, COURT STAFF) (Filed on 3/18/2008) (Entered: 03/18/2008)
48 MOTION to Dismiss 45 Plaintiffs' First Amended Complaint filed by Michael Chertoff, United States Citizenship and Immigration Services, U.S. Department of Homeland Security. Motion Hearing set for 5/6/2008 09:00 AM in Courtroom 3, 17th Floor, San Francisco. (Attachments: # 1 Exhibit Robins Declaration and Exhibits A−H)(Robins, Jeffrey) (Filed on 3/31/2008) Modified on 4/1/2008 (far, COURT STAFF). (Entered: 03/31/2008)
49 Renotice motion hearing re 48 Motion to Dismiss Plaintiffs' First Amended Complaint filed by Michael Chertoff, United States Citizenship and Immigration Services, U.S. Department of Homeland Security. Motion Hearing set for 5/7/2008 09:00 AM in Courtroom 3, 17th Floor, San Francisco. (Robins, Jeffrey) (Filed on 4/1/2008) Modified on 4/4/2008 (far, COURT STAFF). (Entered: 04/01/2008)
Set/Reset Deadlines as to 48 MOTION to Dismiss Plaintiffs' First Amended Complaint. Motion Hearing set for 5/7/2008 09:00 AM in Courtroom 3, 17th Floor, San Francisco. (far, COURT STAFF) (Filed on 4/1/2008) (Entered: 04/04/2008)
50 STIPULATION to Extend Date for Opposition to Defendants' Motion to Dismiss and Related Filings and Hearing and PROPOSED ORDER by Eleuterio Rodriguez Ruiz, Felipe Sanchez Martinez, Francisca Ramirez Alvarez, Constantina Campos, Irma Moreno Sanvicente, Rosa Galaviz, Maria Luisa Arroyo Torres, Juan Rocha Rocha Francisco, Voces Unidas Project, Jorge Dominguez Rivera, Central American Resource Center, Hermandad Mexicana Nacional, Catholic Charities CYO, Sandra Bucio, Alma Rosa Padilla De Hernandez, Maria Hernandez, Rosa Amezquita Razo, Antonio Perez Garcia, Veronica Reyes Bonilla, Marlinda Clarke, Patricia Garcia, Blanca Rossell, Sanctuary for Families, Friendly House, Diocesan Migrant &Refugee Services, Inc., Sergio Bucio Perez, Andres Bucio Perez, Xiomara Castro, Ramona Quintero, Luis R. Nunez Hernandez, Ricardo Nunez Hernandez, Elizabeth Lopez Gomez, International Institute of the East Bay, Maria Estervina Perez, Giovana Saavedra. (Schey, Peter) (Filed on 4/16/2008) Modified on 4/17/2008 (far, COURT STAFF). (Entered: 04/16/2008)

Case: 4:07-cv-1307 As of: 02/14/2013 06:22 AM PST 21 of 24

04/18/2008
04/18/2008 04/30/2008 05/21/2008 06/04/2008 06/25/2008 12/22/2008 02/11/2009
02/11/2009

51 STIPULATION AND ORDER TO EXTEND DATE FOR OPPOSITION TO DEFENDANTS' MOTION TO DISMISS AND RELATED FILINGS AND HEARING re 50 Stipulation, filed by Luis R. Nunez Hernandez, Xiomara Castro, Ricardo Nunez Hernandez, Marlinda Clarke, Hermandad Mexicana Nacional, Juan Rocha Rocha Francisco, Sandra Bucio, Felipe Sanchez Martinez, Friendly House, Blanca Rossell, Maria Hernandez, Central American Resource Center, Ramona Quintero, Sanctuary for Families, Maria Luisa Arroyo Torres, Diocesan Migrant &Refugee Services, Inc., Antonio Perez Garcia, Rosa Amezquita Razo, Voces Unidas Project, International Institute of the East Bay, Alma Rosa Padilla De Hernandez, Constantina Campos, Jorge Dominguez Rivera, Catholic Charities CYO, Eleuterio Rodriguez Ruiz, Rosa Galaviz, Veronica Reyes Bonilla, Elizabeth Lopez Gomez, Maria Estervina Perez, Giovana Saavedra, Patricia Garcia, Andres Bucio Perez, Francisca Ramirez Alvarez, Irma Moreno Sanvicente, Sergio Bucio Perez. Signed by Judge Phyllis J. Hamilton on 4/18/08. (nah, COURT STAFF) (Filed on 4/18/2008) (Entered: 04/18/2008)
Set/Reset Hearings: Defendants' Motion to Dismiss set for 6/4/2008 09:00 AM. (nah, COURT STAFF) (Filed on 4/18/2008) (Entered: 04/18/2008)
52 OPPOSITION to 48 Defendants Motion to Dismiss filed by Catholic Charities CYO. (Attachments: # 1 Exhibit Declaration of Christopher Scherer)(Schey, Peter) (Filed on 4/30/2008) Modified on 5/1/2008 (far, COURT STAFF). (Entered: 04/30/2008)
53 REPLY in Support of 48 MOTION to Dismiss Plaintiffs' First Amended Complaint filed by Michael Chertoff, United States Citizenship and Immigration Services, U.S. Department of Homeland Security. (Robins, Jeffrey) (Filed on 5/21/2008) Modified on 5/28/2008 (far, COURT STAFF). (Entered: 05/21/2008)
54 Minute Entry: Motion Hearing NOT HELD on 6/4/2008 before Phyllis J. Hamilton re 48 MOTION to Dismiss Plaintiffs' First Amended Complaint filed by U.S. Department of Homeland Security, Michael Chertoff, United States Citizenship and Immigration Services. Defendants' Motion to Dismiss set for 6/25/2008 09:00 AM. (Court Reporter Sahar McVickar (415) 626−6060) (nah, COURT STAFF) (Date Filed: 6/4/2008) Modified on 6/5/2008 (far, COURT STAFF). (Entered: 06/04/2008)
55 Minute Entry: Motion Hearing held on 6/25/2008 before Phyllis J. Hamilton re 48 MOTION to Dismiss Plaintiffs' First Amended Complaint filed by U.S. Department of Homeland Security, Michael Chertoff, United States Citizenship and Immigration Services. (Court Reporter Sahar McVickar 415−626−6060) (nah, COURT STAFF) (Date Filed: 6/25/2008) Modified on 6/25/2008 (far, COURT STAFF). (Entered: 06/25/2008)
56 ORDER by Judge Hamilton granting 48 Motion to Dismiss (pjhlc1, COURT STAFF) (Filed on 12/22/2008) (Entered: 12/22/2008)
57 NOTICE OF APPEAL as to 56 Order on Motion to Dismiss by Francisca Ramirez Alvarez, Constantina Campos, Irma Moreno Sanvicente, Maria Luisa Arroyo Torres, Voces Unidas Project, Catholic Charities CYO, Sandra Bucio, Alma Rosa Padilla De Hernandez, Maria Hernandez, Rosa Amezquita Razo, Antonio Perez Garcia, Veronica Reyes Bonilla, Marlinda Clarke, Patricia Garcia, Blanca Rossell, Sanctuary for Families, Diocesan Migrant &Refugee Services, Inc., Sergio Bucio Perez, Andres Bucio Perez, International Institute of the East Bay, Maria Estervina Perez. Filing fee $ 455. (slh, COURT STAFF) (Filed on 2/11/2009) (Entered: 02/12/2009)
58 REPRESENTATION STATEMENT by Francisca Ramirez Alvarez, Constantina Campos, Irma Moreno Sanvicente, Maria Luisa Arroyo Torres, Voces Unidas Project, Michael Chertoff, Catholic Charities CYO, Sandra Bucio, Alma Rosa Padilla De Hernandez, Maria Hernandez, Rosa Amezquita Razo, Antonio Perez Garcia, Veronica Reyes Bonilla, Marlinda Clarke, Patricia Garcia, Blanca Rossell, Sanctuary for Families, Diocesan Migrant &Refugee Services, Inc., Sergio Bucio Perez, Andres Bucio Perez, International Institute of the East Bay, Maria Estervina Perez re 57 Notice of Appeal. (slh, COURT STAFF) (Filed on 2/11/2009) (Entered: 02/12/2009)

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02/12/2009 02/12/2009 02/17/2009
02/19/2009 02/24/2009
03/19/2009
04/01/2009 04/01/2009
04/02/2009 04/02/2009

59 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 57 Notice of Appeal. (slh, COURT STAFF) (Filed on 2/12/2009) (Additional attachment(s) added on 2/12/2009: # 1 notification form) (slh, COURT STAFF). (Entered: 02/12/2009)
Copy of Notice of Appeal and Docket sheet mailed to all counsel (slh, COURT STAFF) (Filed on 2/12/2009) (Entered: 02/12/2009)
60 Transcript of Proceedings held on 06/25/08, before Judge Phyllis J. Hamilton. Court Reporter/Transcriber Sahar McVickar, Telephone number (415) 626−6060/sahar_mcvickar@cand.uscourts.gov. 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 5/15/2009. (McVickar, Sahar) (Filed on 2/17/2009) (Entered: 02/17/2009)
61 Transcript Designation and Ordering Form for proceedings held on 8/15/07. (far, COURT STAFF) (Filed on 2/19/2009) (Entered: 02/20/2009)
62 USCA Case Number 09−15286 9th Circuit for 57 Notice of Appeal,, filed by Maria Luisa Arroyo Torres, Diocesan Migrant &Refugee Services, Inc., Antonio Perez Garcia, Rosa Amezquita Razo, International Institute of the East Bay, Voces Unidas Project, Marlinda Clarke, Alma Rosa Padilla De Hernandez, Constantina Campos, Sandra Bucio, Catholic Charities CYO, Veronica Reyes Bonilla, Maria Estervina Perez, Blanca Rossell, Maria Hernandez, Patricia Garcia, Andres Bucio Perez, Francisca Ramirez Alvarez, Irma Moreno Sanvicente, Sergio Bucio Perez, Sanctuary for Families. (far, COURT STAFF) (Filed on 2/24/2009) (Entered: 02/24/2009)
63 Transcript of Proceedings held on 8/15/07, before Judge Phyllis J. Hamilton. Court Reporter/Transcriber Sahar McVickar, Telephone number (415) 626−6060/sahar_mcvickar@cand.uscourts.gov. 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 6/15/2009. (McVickar, Sahar) (Filed on 3/19/2009) (Entered: 03/19/2009)
64 NOTICE by Catholic Charities CYO of Withdrawal of Counsel (Schey, Peter) (Filed on 4/1/2009) (Entered: 04/01/2009)
65 AMENDED NOTICE OF APPEAL re 57 Notice of Appeal by Eleuterio Rodriguez Ruiz, Felipe Sanchez Martinez, Francisca Ramirez Alvarez, Constantina Campos, Irma Moreno Sanvicente, Rosa Galaviz, Maria Luisa Arroyo Torres, Juan Rocha Rocha Francisco, Voces Unidas Project, Jorge Dominguez Rivera, Central American Resource Center, Hermandad Mexicana Nacional, Catholic Charities CYO, Sandra Bucio, Alma Rosa Padilla De Hernandez, Maria Hernandez, Rosa Amezquita Razo, Antonio Perez Garcia, Veronica Reyes Bonilla, Marlinda Clarke, Patricia Garcia, Blanca Rossell, Sanctuary for Families, Friendly House, Diocesan Migrant &Refugee Services, Inc., Sergio Bucio Perez, Andres Bucio Perez, Xiomara Castro, Ramona Quintero, Luis R. Nunez Hernandez, Ricardo Nunez Hernandez, Elizabeth Lopez Gomez, International Institute of the East Bay, Maria Estervina Perez, Giovana Saavedra. (Schey, Peter) (Filed on 4/1/2009) Modified on 4/2/2009 (far, COURT STAFF). (Entered: 04/01/2009)
66 Copy of Amended Notice of Appeal and Docket sheet mailed to all counsel (Attachments: # 1 docket sheet)(far, COURT STAFF) (Filed on 4/2/2009) (Entered: 04/02/2009)
67 Transmission of Amended Notice of Appeal and Docket Sheet to US Court of Appeals (Attachments: # 1 docket sheet, # 2 cover letter)(far, COURT STAFF) (Filed on 4/2/2009) (Entered: 04/02/2009)

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08/05/2009
08/06/2009 08/06/2009 08/18/2009
08/18/2009 08/31/2009 08/31/2009 08/31/2009 09/04/2009

68 NOTICE by Francisca Ramirez Alvarez, Veronica Reyes Bonilla, Sandra Bucio, Constantina Campos, Xiomara Castro, Catholic Charities CYO, Central American Resource Center, Marlinda Clarke, Diocesan Migrant &Refugee Services, Inc., Juan Rocha Rocha Francisco, Friendly House, Rosa Galaviz, Antonio Perez Garcia, Patricia Garcia, Elizabeth Lopez Gomez, Luis R. Nunez Hernandez, Maria Hernandez, Ricardo Nunez Hernandez, International Institute of the East Bay, Felipe Sanchez Martinez, Alma Rosa Padilla De Hernandez, Andres Bucio Perez, Maria Estervina Perez, Sergio Bucio Perez, Ramona Quintero, Rosa Amezquita Razo, Jorge Dominguez Rivera, Blanca Rossell, Eleuterio Rodriguez Ruiz, Giovana Saavedra, Sanctuary for Families, Irma Moreno Sanvicente, Maria Luisa Arroyo Torres, Voces Unidas Project re 56 Order on Motion to Dismiss (Attachments: # 1 Proposed Order)(Holguin, Charles) (Filed on 8/5/2009) (Entered: 08/05/2009)
69 ORDER OF DISMISSAL. Signed by Judge Hamilton on 8/6/2009. (pjhlc1, COURT STAFF) (Filed on 8/6/2009) (Entered: 08/06/2009)
70 JUDGMENT. Signed by Judge Hamilton on 8/6/2009. (pjhlc1, COURT STAFF) (Filed on 8/6/2009) (Entered: 08/06/2009)
71 NOTICE OF APPEAL as to 56 Order on Motion to Dismiss, 70 Judgment, 18 Order, 69 Order by Francisca Ramirez Alvarez, Veronica Reyes Bonilla, Sandra Bucio, Constantina Campos, Catholic Charities CYO, Marlinda Clarke, Diocesan Migrant &Refugee Services, Inc., Antonio Perez Garcia, Patricia Garcia, Maria Hernandez, International Institute of the East Bay, Alma Rosa Padilla De Hernandez, Andres Bucio Perez, Maria Estervina Perez, Sergio Bucio Perez, Rosa Amezquita Razo, Blanca Rossell, Sanctuary for Families, Irma Moreno Sanvicente, Maria Luisa Arroyo Torres, Voces Unidas Project. Filing fee $ 455, Receipt No. 34611035645. (far, COURT STAFF) (Filed on 8/18/2009) (Entered: 08/19/2009)
72 REPRESENTATION STATEMENT re 71 Notice of Appeal filed by Plaintiffs. (far, COURT STAFF) (Filed on 8/18/2009) (Entered: 08/19/2009)
73 Copy of Notice of Appeal and Docket sheet mailed to all counsel (Attachments: # 1 docket sheet)(far, COURT STAFF) (Filed on 8/31/2009) (Entered: 08/31/2009)
74 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 71 Notice of Appeal,, (Attachments: # 1 docket sheet, # 2 USCA Appeal Notification Form, # 3 cover letter)(far, COURT STAFF) (Filed on 8/31/2009) (Entered: 08/31/2009)
75 Certificate of Record forwarded to USCA re appeal 71 Notice of Appeal (far, COURT STAFF) (Filed on 8/31/2009) (Entered: 08/31/2009)
76 CLERKS NOTICE

Effective September 14, 2009, Judge Phyllis Hamilton's courtroom and chambers will be located in the Oakland Courthouse, Courtroom #3, 3rd floor, 1301 Clay Street, Oakland, California 94612.

On or after September 14, 2009, all filings for matters pending on Judge Hamiltons docket, all court appearances, and all deliveries of chambers' copies of documents must be made at the Oakland Courthouse.

The days and times for law and motion calendars and all currently scheduled proceedings remain unchanged.

Please note that all of Judge Hamilton's case files will be moved to the Oakland Courthouse, therefore all cases numbers assigned to her will be changed slightly to reflect the correct venue. Previously, all case numbers started with "3:" to indicate the San Francisco office (Example: 3:09−cv−12345−PJH). As of September 14th, 2009, all of Judge Hamilton's case files will begin with "4:" to indicate the Oakland office, but everything else will stay the same (Example: 4:09−cv−12345−PJH). When e−filing, using the short case number format will always avoid problems when searching for the correct case: 09−12345 (YY−NNNNN).

For information on the Oakland Courthouse's accessibility, parking, driving

Case: 4:07-cv-1307 As of: 02/14/2013 06:22 AM PST 24 of 24

09/14/2009
09/15/2009
02/25/2010 05/13/2010 05/20/2010

directions, public transit, hotels and other helpful links, please visit our website: http://www.cand.uscourts.gov, click on "Court Information" on the right hand side of our main page, then select the Oakland link under "Address and Jurisdiction". The main telephone number for the Oakland Division is 510 637−3530.
(ys, COURT STAFF) (Filed on 9/4/2009) (Entered: 09/04/2009)
77 USCA Case Number 09−16822 9th Circuit for 71 Notice of Appeal,, filed by Maria Luisa Arroyo Torres, Diocesan Migrant &Refugee Services, Inc., Antonio Perez Garcia, Rosa Amezquita Razo, International Institute of the East Bay, Voces Unidas Project, Marlinda Clarke, Alma Rosa Padilla De Hernandez, Constantina Campos, Sandra Bucio, Catholic Charities CYO, Veronica Reyes Bonilla, Maria Estervina Perez, Blanca Rossell, Maria Hernandez, Patricia Garcia, Andres Bucio Perez, Francisca Ramirez Alvarez, Irma Moreno Sanvicente, Sergio Bucio Perez, Sanctuary for Families. (far, COURT STAFF) (Filed on 9/14/2009) (Entered: 09/14/2009)
78 USCA Case Number 09−16822 USCA for 71 Notice of Appeal,, filed by Maria Luisa Arroyo Torres, Diocesan Migrant &Refugee Services, Inc., Antonio Perez Garcia, Rosa Amezquita Razo, International Institute of the East Bay, Voces Unidas Project, Marlinda Clarke, Alma Rosa Padilla De Hernandez, Constantina Campos, Sandra Bucio, Catholic Charities CYO, Veronica Reyes Bonilla, Maria Estervina Perez, Blanca Rossell, Maria Hernandez, Patricia Garcia, Andres Bucio Perez, Francisca Ramirez Alvarez, Irma Moreno Sanvicente, Sergio Bucio Perez, Sanctuary for Families. (vlk, COURT STAFF) (Filed on 9/15/2009) (Entered: 09/15/2009)
79 USCA Memorandum as to 57 Notice of Appeal affirming USDC decision (vlk, COURT STAFF) (Filed on 2/25/2010) (Entered: 05/20/2010)
80 MANDATE of USCA as to 57 Notice of Appeal (vlk, COURT STAFF) (Filed on 5/13/2010) (Entered: 05/20/2010)
81 CLERKS Letter Spreading Mandate to Counsel (vlk, COURT STAFF) (Filed on 5/20/2010) (Entered: 05/20/2010)