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UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON

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AT SEATTLE

ROSHANAK ROSHANDEL; VAFA 10 GHAZI-MOGHADDAM; HAWO
AHMED; LIN HUANG; AHMAD 11 ALKABRA; MOHAMMAD REZA
AIDINEJAD; and ZAHRA ABEDIN, 12 individually and on behalf of all others
similarly situated, 13

Case No. C07-1739 MJP
FIRST AMENDED COMPLAINT CLASS ACtION

Plaintiffs, 14

v. 15

MICHAEL CHERTOFF, Secretary, United 16 States Department of Homeland Security;
EMILIO GONZALEZ, Director, United 17 States Citizenship and Immigration
Services; ANN CORSANO, Director, 18 District 20, United States Citizenship and
Immigration Services; JULIA HARRISON, 19 Director, Seattle Field Office, United States
Citizenship and Immigration Services; 20 MICHAEL MUKASEY, Attorney General,
United States Department of Justice; 21 ROBERT MUELLER III, Director, Federal
Bureau of Investigation; and the UNITED
22 STATES OF AMERICA.

23

Defendants.

24
For their complaint against Defendants, Plaintiffs Roshanak Roshandel, Vafa Ghazi25
Moghaddam, Hawo Ahmed, Lin Huang, Ahmad Alkabra, Mohammad Reza Aidinejad and Zahra
26

FIRST AMENDED COMPLAINT - CLASS ACTION Case No. C07- 1739 MJP - 1
Seattle-3415416.! 0099820-00238

STOEL RIVES LLP
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1 Abedin, individually and on behalf of all others similarly situated, hereby allege as follows by

2 and through their undersigned attorneys of record:

3

I. PRELIMINARY STATEMENT

4

1. Plaintiffs are lawful permanent residents of the United States, each of whom has

5 applied to be naturalized as a United States citizen. Each seeks to pledge allegiance to the

6 United States and to participate fully in civic society.

7

2. By law, the United States Citizenship and Immigration Services ("CIS") must

8 render a decision on a naturalization application within 120 days of the applicant's naturalization

9 examination and must grant the application when, as here, the applicant has met all legal

10 requirements for naturalization. 8 C.F.R. § 335.3(a); see 8 U.S.C. § 1447(b). Defendants have

11 nevertheless unlawfully and unreasonably delayed rendering a decision on Plaintiffs'

12 naturalization applications on the ground that a so-called "name check"-a requirement found

13 nowhere in the statutes or regulations governing naturalization-remains pending:

14

• Plaintiff Roshanak Roshandel has been a lawful permanent resident of the United

15

States since May 12,2001. Dr. Roshandel applied for naturalization on March

16

16, 2004. Defendants scheduled Dr. Roshandel for her naturalization examination

17

on July 22,2004. She passed the naturalization examination and has fulfilled all

18

legal requirements for naturalization. Yet, due to Defendants' unlawful conduct,

19

her application has been pending for more than three years since she passed her

20

naturalization examination.

21

• PlaintiffVafa Ghazi-Moghaddam has been a lawful permanent resident ofthe

22

United States since June 10, 1999. Dr. Ghazi-Moghaddam applied for

23

naturalization on March 15,2004. Defendants scheduled Dr. Ghazi-Moghaddam

24

for his naturalization examination on October 25,2004. He passed the

25

naturalization examination and has fulfilled all legal requirements for

26

naturalization. Yet, due to Defendants' unlawful conduct, his application has

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1

been pending for more than three years since he passed his naturalization

2

examination.

3

• Plaintiff Hawo Ahmed has been a lawful permanent resident of the United States

4

since March 15, 2000. Ms. Ahmed applied for naturalization on July 25, 2005.

5

Defendants scheduled Ms. Ahmed for her naturalization examination on

6

November 17,2005. She passed the naturalization examination and has fulfilled

7

all legal requirements for naturalization. Yet, due to Defendants' unlawful

8

conduct, her application has been pending for more than two years since she

9

passed her naturalization examination.

10

• Plaintiff Lin Huang has been a lawful permanent resident of the United States

11

since December 29, 1996. Ms. Huang applied for naturalization on March 22,

12

2005. Defendants scheduled Ms. Huang for her naturalization examination on

13

September 20,2005. She passed the naturalization examination and has fulfilled

14

all legal requirements for naturalization. Yet, due to Defendants' unlawful

15

conduct, her application has been pending for more than two years since she

16

passed her naturalization examination.

17

• Plaintiff Ahmad Alkabra has been lawful permanent resident of the United States

18

since January 13,2003. Mr. Alkabra applied for naturalization on October 24,

19

2005. Defendants scheduled Mr. Alkabra for his naturalization interview on

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February 2,2006. He passed his naturalization examination and has fulfilled all

21

legal requirements for naturalization. Yet, due to Defendants' unlawful conduct,

22

his application has been pending for more than two years since he passed his

23

naturalization examination.

24

• Plaintiff Mohammad Reza Aidinejad has been lawful permanent resident of the

25

United States since AprilS, 2001. Mr. Aidinejad applied for naturalization on

26

January 9, 2006. Defendants scheduled Mr. Aidinejad for his naturalization

FIRST AMENDED COMPLAINT - CLASS ACTION Case No. C07- 1739 MJP - 3
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ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101
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1

interview on August 12, 2006. He passed his naturalization examination and has

2

fulfilled all legal requirements for naturalization. Yet, due to Defendants'

3

unlawful conduct, his application has been pending for nearly two years since he

4

passed his naturalization examination.

5

• Plaintiff Zahra Abedin has been lawful permanent resident of the United States

6

since February 23, 2000. Ms. Abedin applied for naturalization on January 28,

7

2005. Defendants scheduled Ms. Abedin for her naturalization interview on May

8

31,2005. She passed her naturalization examination and has fulfilled all legal

9

requirements for naturalization. Yet, due to Defendants' unlawful conduct, her

10

application has been pending for nearly three years since she passed her

11

naturalization examination.

12

3. Defendants' unlawful conduct has deprived Plaintiffs ofthe privileges of United

13 States citizenship and has prevented them from fully participating in civic society. Though they

14 wish to, Plaintiffs cannot vote or serve on juries. Nor can they travel abroad without fear of

15 being excluded from the United States. Some are ineligible for jobs for which they are qualified.

16 Plaintiffs' experiences are typical of tens of thousands of other naturalization applicants

17 throughout the country who have suffered unreasonable and unlawful delays in the naturalization

18 process due to pending name checks.

19

4. In addition, Defendants failed to inform Plaintiffs Roshandel and Ghazi-

20 Moghaddam at their naturalization examinations of their right to request a hearing in district

21 court in the event Defendants failed to timely render a decision on their applications, as required

22 by statute. See 8 U.S.C. § 1446(b).

23

5. Plaintiffs respectfully request, individually and on behalf of all others similarly

24 situated, that this Court certify the proposed plaintiff classes, enter judgment in favor of the

25 proposed plaintiff class and against Defendants on all claims, and grant the relief requested

26

FIRST AMENDED COMPLAINT - CLASS ACTION Case No. C07- 1739 MJP - 4
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STOEL RIVES LLP
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1 herein, including without limitation directing Defendants to complete the class members' name

2 checks and adjudicate their naturalization applications within 90 days.

3

II. JURISDICTION AND VENUE

4

6. This Court has subject matter jurisdiction pursuant to 8 U.S.C. § 1447(b) (district

5 court has exclusive jurisdiction over naturalization applications that have not been granted within

6 statutory 120-day period), 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 2201 (Declaratory

7 Judgment Act), 28 U.S.C. § 1361 (mandamus), 5 U.S.C. § 702 (Administrative Procedure Act),

8 and 28 U.S.C.. § 1651 (All Writs Act).

9

7. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e) (action against

10 officers of United States may be brought in any district where "plaintiff resides") and 8 U.S.C. §

11 1447(b) (action shall be brought in judicial district where naturalization applicant resides)

12 because all Plaintiffs and proposed class members reside in the Western District of Washington.

13

III. PARTIES

14 A. Named Plaintiffs

15

Roshanak Roshandel

16

8. Plaintiff Roshanak Roshandel is a citizen of Iran. Dr. Roshandel came to the

17 United States on a student visa in 1996 and earned her undergraduate, masters, and doctoral

18 degrees in this country. She is an assistant professor in the Department of Computer Science and

19 Software Engineering at Seattle University.

20

9. Dr. Roshandel has been a lawful permanent resident ofthe United States since

21 May 12, 2001. She lives in Bellevue, Washington. Her spouse is a naturalized United States

22 citizen and their daughter, who was born in the United States, is also a United States citizen. Her

23 parents, brother, and in-laws are naturalized United States citizens or lawful residents of the

24 United States.

25

10. Dr. Roshandel applied for naturalization on March 16, 2004, has fulfilled all legal

26 requirements for naturalization, and passed her naturalization examination on July 22, 2004.

FIRST AMENDED COMPLAINT - CLASS ACTION Case No. C07- 1739 MJP - 5
Seattle-3415416.1 0099820-00238

STOEL RIVES LLP ArrORNEYS
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1 Though more than 120 days have elapsed since her naturalization examination, Dr. Roshandel's

2 naturalization application remains pending. She was not informed of the remedies available

3 under 8 U.S.C. § 1447(b) at the time of her naturalization examination.

4

11. Dr. Roshandel has inquired as to the status of her naturalization application on

5 numerous occasions. She has written to, called, and emailed CIS and appeared in person at local

6 CIS offices; she has written to the Federal Bureau of Investigation ("FBI"); and she has written

7 to members of Congress; she has written to First Lady Laura Bush. Each time she has inquired

8 into the status of her naturalization application, she has been told that a name check remains

9 pending.

10

12. Dr. Roshandel wants to become a United States citizen so that she will no longer

11 fear being excluded from the country she has made her home, so that she will have the same

12 citizenship status as her spouse and daughter, and so that she can participate fully in civic life,

13 including voting and serving on juries. Dr. Roshandel applied for naturalization well before the

14 2004 presidential election in the hope that she could begin participating in national elections, and

15 hopes her voice will be heard in the 2008 presidential election.

16

Vala Ghazi-Moghaddam

17

13. PlaintiffVafa Ghazi-Moghaddam is a citizen of Iran. Dr. Ghazi-Moghaddam

18 came to the United States on a student visa in 1991 to pursue a doctoral degree at the University

19 of Minnesota. He works as an electrical engineer for a California software company developing

20 wireless technologies.

21

14. Dr. Ghazi-Moghaddam has been a lawful permanent resident of the United States

22 since June 10, 1999. He lives in Seattle, Washington.

23

15. Dr. Ghazi-Moghaddam applied for naturalization on March 15,2004, has met all

24 legal requirements to be naturalized as a United States citizen, and passed his naturalization

25 examination on October 25,2004. Though more than 120 days have elapsed since his

26 naturalization examination, Dr. Ghazi's naturalization application remains pending. He was not

FIRST AMENDED COMPLAINT - CLASS ACTION Case No. C07- 1739 MJP - 6
Seattle-3415416.1 0099820-00238

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ATTORNEYS
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1 informed of the remedies available under 8 U.S.C. § 1447(b) at the time of his naturalization

2 examination.

3

16. Dr. Ghazi-Moghaddam has inquired into the status of his naturalization

4 application on numerous occasions by calling CIS and appearing in person at local CIS offices

5 and by writing to members of Congress. Each time he has inquired into the status of his

6 naturalization application, he has been told that a name check remains pending.

7

17. Dr. Ghazi-Moghaddam travels for work and pleasure, and has experienced

8 increased scrutiny and delay while traveling on an Iranian passport. He is interested in American

9 politics and is frustrated by his ineligibility to vote. He wants to become a United States citizen

10 so that he will no longer fear exclusion from the country he has made his home and so that he

11 can participate fully in civic society.

12

Hawo Ahmed

13

18. Plaintiff Hawo Ahmed is a citizen of Somalia. Ms. Ahmed came to the United

14 States as a refugee in 2000 at age 14, along with her mother and sisters. Her status was later

15 adjusted to lawful permanent resident retroactive to March 15,2000.

16

19. Ms. Ahmed resides in Seatac, Washington, and is studying education at Highline

17 Community College. Her mother and sisters are all naturalized citizens of the United States.

18

20. Ms. Ahmed applied for naturalization on July 25, 2005, has met all legal

19 requirements to be naturalized as a United States citizen, and passed her naturalization

20 examination on November 17,2005. Though more than 120 days have elapsed since her

21 naturalization examination, Ms. Ahmed's naturalization application remains pending. Many of

22 Ms. Ahmed's family members passed their naturalization examinations at approximately the

23 same time as Ms. Ahmed and were promptly naturalized, but Ms. Ahmed still awaits a decision

24 on her application.

25

21. Ms. Ahmed has inquired as to the status of her naturalization application by

26 calling CIS and appearing in person at local CIS offices approximately every other month, and

FIRST AMENDED COMPLAINT - CLASS ACTION Case No. C07- 1739 MJP - 7
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1 contacting the United States Department of Homeland Security. Each time she has inquired into

2 the status of her naturalization application, she has been told that a name check remains pending.

3

22. Ms. Ahmed wants to become a United States citizen so that she can fully

4 participate in civic society; so that she can vote, especially with respect to matters affecting

5 education; and so that she can enjoy all benefits of United States citizenship along with the rest

6 of her naturalized family.

7

Lin Huang

8

23. Plaintiff Lin Huang is a citizen of China. Ms. Huang came to the United States as

9 a conditional lawful permanent resident based on the visa petition her husband-a naturalized

10 United States Citizen-filed on her behalf. Thereafter, she and her husband successfully

11 petitioned to remove the conditions of her lawful residency. Ms. Huang has been a lawful

12 permanent resident of the United States since December 29, 1996.

13

24. Ms. Huang resides in Renton, Washington with her husband and their two

14 children. Her spouse is a naturalized United States citizen, and her two children, who were born

15 in the United States, are also United States citizens.

16

25. Ms. Huang applied for naturalization on March 22, 2005, has fulfilled all legal

17 requirements for naturalization, and passed her naturalization examination on September 20,

18 2005. Though more than 120 days have elapsed since her naturalization examination, Ms.

19 Huang's naturalization application remains pending.

20

26. Ms. Huang has inquired as to the status of her naturalization application by

21 writing to CIS and appearing in person at local CIS offices. Each time she has inquired into the

22 status of her naturalization application, she has been told that a name check remains pending.

23

27. Ms. Huang wants to become a United States citizen so that she can fully

24 participate in civic society, so that she can vote, and so that she can enjoy all benefits of United

25 States citizenship along with the rest of her immediate family.

26

FIRST AMENDED COMPLAINT - CLASS ACTION Case No. C07- 1739 MJP - 8
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1

Ahmad Alkabra

2
28. Plaintiff Ahmad Alkabra holds a Palestinian passport. He came to the United 3
State as a student, and became a lawful permanent resident on January 13,2003, on the basis of 4
his marriage to a U.S. citizen. He lives in Issaquah, Washington, and works as a project manager 5
in the IT industry. 6
29. Mr. Alkabra applied for naturalization on October 24,2005, has fulfilled all legal 7
requirements for naturalization, and passed his naturalization interview on February 2, 2006. At 8
his naturalization interview, Mr. Alkabra was informed that a decision could not be made on his 9
application because a name check remained pending. Though more than 120 days have elapsed
10
since his naturalization examination, Mr. Alkabra's naturalization application remains pending. 11
Mohammad Reza Aidinejad 12
30. Plaintiff Mohammad Reza Aidinejad is a citizen of Iran. He first came to the 13
United States in 1986 and became a lawful permanent resident on AprilS, 2001. He is an 14
engineer for the Boeing Company and resides in Issaquah, Washington. 15
31. Mr. Aidinejad applied for naturalization on January 9, 2006, has fulfilled all legal 16
requirements for naturalization, and passed his naturalization interview on August 12, 2006. 17
Though more than 120 days have elapsed since his naturalization examination, Mr. Aidinejad's 18
naturalization application remains pending. 19
32. Mr. Aidinejad has inquired as to the status of his naturalization application since 20
his interview, but still has received no decision. Because he is not a citizen, he is unable to 21
obtain security clearances which would allow him to work on Boeing projects from which he is
22
currently excluded. 23

24

25

26

FIRST AMENDED COMPLAINT - CLASS ACTION Case No. C07- 1739 MJP - 9
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1

Zahra Abedin

2

33. PlaintiffZahra Abedin is a citizen of Iran. She was admitted to the United States

3 on February 23, 2000 as a refugee. Subsequently her status was adjusted to lawful permanent

4 resident retroactive to February 23,2000. She lives in Bellevue, Washington.

5

34. Ms. Abedin applied for naturalization on January 28, 2005. She has fulfilled all

6 legal requirements for naturalization, and passed her naturalization interview on May 31, 2005.

7 At her naturalization interview, Ms. Abedin was informed that a decision could not be made on

8 her application because a name check was pending. Though more than 120 days have elapsed

9 since her naturalization examination, Ms. Abedin's naturalization application remains pending.

10

35. Ms. Abedin applied to work for the United States Customs and Border Patrol.

11 Her application for employment is still pending as a result of the fact that she has not yet been

12 naturalized. Ms. Abedin has inquired as to the status of her naturalization numerous times, with

13 the Immigration Service as well as with her Congressional and Senate representatives, but still

14 has received no decision.

15 B. Defendants

16

36. Defendant Michael Chertoff is the Secretary of the United States Department of

17 Homeland Security. Mr. Chertoff is ultimately responsible for administering immigration and

18 naturalization laws and regulations, including the laws and regulations governing the

19 naturalization process. He is sued in his official capacity.

20

37. Defendant Emilio Gonzalez is the Director of CIS. Mr. Gonzalez is responsible

21 for processing and determining applications for naturalization in accordance with the laws and

22 lawfully promulgated regulations of the United States. He is sued in his official capacity.

23

38. Defendant Ann Corsano is the Director of District 20 of CIS. Ms. Corsano is

24 responsible for processing and determining naturalization applications in accordance with the

25 laws and lawfully promulgated regulations of the United States for all applicants residing in

26

FIRST AMENDED COMPLAINT - CLASS ACTION Case No. C07- 1739 MJP - 10
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STOEL RIVES LLP AnORNEYS
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1 District 20, which includes all applicants residing in the Western District of Washington. She is

2 sued in her official capacity.

3

39. Defendant Julia Harrison is the Director of the Seattle Field Office of CIS. Ms.

4 Harrison is responsible for processing and determining naturalization applications-in

5 accordance with the laws and lawfully promulgated regulations of the United States for all

6 applicants residing within the Seattle Field Office's jurisdiction. She is sued in her official

7 capacity.

8

40. Defendant Michael Mukasey is theAttorney General ofthe United States

9 Department of Justice. Mr. Keisler is ultimately responsible for the operations of the FBI,

10 including the processing of "name checks" conducted by the FBI at the behest of CIS as part of

11 the naturalization process. He is sued in his official capacity.

12

41. Defendant Robert Mueller III is the Director of the FBI. Mr. Mueller is

13 responsible for the processing of "name checks" conducted by the FBI at the behest of CIS as

14 part of the naturalization process. He is sued in his official capacity.

15

42. Defendant the United States of America includes all government agencies and

16 departments responsible for implementing the Immigration and Nationality Act and conducting

17 "name checks" at the behest of CIS as part of the naturalization process.

18

IV. FACTS

19 A. The Naturalization Process

20

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

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

22 as naturalization.

23

44. A person seeking naturalization must meet certain requirements, including an

24 understanding of the English language and the history of the United States, a sufficient period

25 of physical presence in the United States, and good moral character. See 8 U.S.C. §§ 1423,

26

FIRST AMENDED COMPLAINT - CLASS ACTION Case No. C07- 1739 MJP - 11
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1 1427(a). Persons seeking naturalization must submit an application to CIS, the agency

2 responsible for adjudicating naturalization applications. See 8 U.S.C. § 1445; 8 C.F.R. § 100.2.

3

45. Once an application is submitted, CIS conducts an investigation of each

4 naturalization applicant. See 8 U.S.C. § 1446(a); 8 C.F.R. § 335.1. Under CIS regulations, the

5 investigation includes a criminal background check performed by the FBI. See 8 C.F.R. §

6 335.2(b). After the criminal background check is completed, CIS schedules a naturalization

7 examination, at which an applicant meets with a CIS officer who is authorized to ask questions

8 and take testimony. The CIS officer determines whether to grant or deny the naturalization

9 application, see 8 U.S.C. § 1446(d), and may do so at the time of the naturalization

10 examination, or within 120 days after the date of the examination. See 8 C.F.R. § 335.3; see

11 also 8 U.S.C. § 1571(b) (applications for immigration benefits should generally be adjudicated

12 within 180 days of initial filing of application). If a naturalization application is granted, the

13 applicant is sworn in as a United States citizen.

14

46.. CIS must render a decision to grant or deny the application within 120 days of the

15 date of the initial examination. See 8 C.F.R. § 335.3(a). In addition, the CIS officer must grant

16 a naturalization application if the applicant has complied with all legal requirements for

17 naturalization. Id.; see also Tutun v. United States, 270 U.S. 568, 578 (1926) (statutorily

18 eligible petitioner has right to naturalization certificate on conclusion of hearing).

19 Naturalization is not discretionary in this circumstance; an applicant is entitled to be naturalized

20 if all statutory requirements are met.

21

47. When CIS fails to render a decision on a naturalization application within 120

22 days of the naturalization examination, the applicant "may apply to the United States district

23 court for the district in which the applicant resides for a hearing on the matter." 8 U.S.C. §

24 1447(b). If a naturalization application is not granted at the time of the naturalization

25 examination, CIS is required to inform the applicant of the remedies available under 8 U.S.C. §

26

FIRST AMENDED COMPLAINT - CLASS ACTION Case No. C07- 1739 MJP - 12
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1 1447(b). See 8 U.S.C. § 1446(b) (CIS officer "shall, at the examination, inform the applicant of

2 the remedies available to the applicant under section 1447 of this title" (emphasis added)).

3

48. If a naturalization applicant applies to a district court, the district court gains

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

5 Cir. 2004), and the district court may determine the matter or remand to CIS with appropriate

6 instructions, see 8 U.S.C. § 1447(b).

7

8 B. The Name Check Requirement

9

49. In 2002, without promulgating any regulations and without statutory

10 authorization, CIS dramatically altered the naturalization process by requiring that all applicants

11 pass a "name check" conducted by the FBI before final approval. A name check is a search of

12 FBI records and other records the FBI has access to based on the full name of the applicant. On

13 information and belief, the FBI conducts the name check through manual and electronic

14 searches of these records. At CIS's request, the FBI conducts name checks on all naturalization

15 applicants

16

50. On information and belief, the name check is implemented in such a manner that

17 an applicant may be erroneously identified as a "person of interest" to the FBI, thereby delaying

18 adjudication of the naturalization application, even though the applicant has committed no

19 crimes and is not a suspect, and even though the name check revealed no other information

20 bearing on eligibility for naturalization. For example, the name check may confuse the

21 applicant with a person with a similar name or result in a "hit" when the applicant is an

22 innocent witness to or victim of a crime.

23

51. A name check is not authorized or required by statute or regulation. On

24 information and belief, the name check is performed even when an applicant has already

25 cleared an FBI criminal background check in advance of the naturalization examination.

26

FIRST AMENDED COMPLAINT - CLASS ACTION
Case No. C07-1739MJP-13
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STOEL RIVES LLP ATTORNEYS
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1

52. On information and belief, CIS will not grant naturalization applications until it

2 receives a completed name check from the FBI. Neither CIS nor the FBI has imposed any

3 timeline for completion of name checks.

4

53. Nor has CIS promulgated any regulations setting forth the name check as a

5 prerequisite for naturalization. In contrast, in March 1998, the Immigration and Naturalization

6 Service ("INS"), CIS's predecessor agency, promulgated a rule implementing the FBI criminal

7 background check requirement for notice and public comment. See Requiring Completion of

8 Criminal Background Checks Before Final Adjudication of Naturalization Applications, 63

9 Fed. Reg. 12979 (Mar. 17, 1998).

10

54. In April 2006, CIS implemented a new policy and practice of delaying

11 naturalization examinations until after the name check is completed. Thus, for certain

12 naturalization applicants, unreasonable and extraordinary delays now occur before the

13 naturalization examination.

14 C. Defendants' Unlawful Conduct

15

55. On information and belief, Defendants Chertoff, Gonzalez, Corsano, Harrison,

16 and United States have a policy, pattern, and practice of unlawfully failing to render a decision

17 on the naturalization applications of the proposed plaintiff class within 120 days of the date of

18 naturalization examinations due to a pending name check.

19

56. On information and belief, Defendants Chertoff, Gonzalez, Corsano, Harrison,

20 and United States have a policy, pattern, and practice of unlawfully withholding and

21 unreasonably delaying rendering a decision on the naturalization applications of the proposed

22 plaintiff class due to a pending name check.

23

57. On information and belief, Defendants Chertoff, Gonzalez, Corsano, Harrison,

24 and United States have a policy, pattern, and practice of unlawfully failing to notify

25 naturalization applicants of their right to seek a hearing in district court on their applications

26

FIRST AMENDED COMPLAINT - CLASS ACTION Case No. C07- 1739 MJP - 14
Seattle-3415416.! 0099820-00238

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1 when Defendants fail to render a decision on an application within 120 days of a naturalization

2 examination.

3

58. On information and belief, Defendants Chertoff, Gonzalez, Corsano, Harrison,

4 and United States have a policy, pattern, and practice of unlawfully requiring completed name

5 checks before adjudicating the naturalization applications of the proposed plaintiff class, despite

6 having no statutory or regulatory authorization for such name checks. Defendants Gonzalez

7 and Chertoff unlawfully implemented name checks as a prerequisite to naturalization without

8 public notice and without providing a period for public comment. Requiring name checks as a

9 prerequisite to naturalization effected a substantive change in existing law resulting in undue

10 hardship and burden to the proposed plaintiff class.

11

59. On information and belief, Defendants Mukasey and Mueller have a policy,

12 pattern, and practice of unlawfully withholding and unreasonably delaying the completion of

13 name checks, with the full knowledge that CIS will not adjudicate the naturalization

14 applications of the proposed plaintiff class until name checks are completed.

15

60. As a result of Defendants' unlawful acts and omissions, members of the proposed

16 plaintiff class have suffered injury-in-fact, in that they have been unlawfully denied the rights

17 and benefits of United States citizenship.

18

V. CLASS ACTION ALLEGATIONS

19

61. Pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2), Plaintiffs bring

20 this action individually and on behalf of all other persons similarly situated. The proposed

21 plaintiff class consists of:

22

All lawful permanent residents of the United States residing in the

Western District of Washington who have submitted naturalization

23

applications to CIS but whose naturalization applications have not

been determined within 120 days of the date of their initial

24

examination due to the pendency of a "name check."

25 The proposed plaintiff class includes applicants who were not informed, at the time of their

26 initial examination, of their right under 8 U.S.C. § 1447(b) "to apply to the United States district

FIRST AMENDED COMPLAINT - CLASS ACTION Case No. C07- 1739 MJP - 15
Seattle-3415416.1 0099820-00238

STOEL RIVES LLP ArrORNEYS
600 University Street, Suite 3600, Seattle, WA 98101 Telephone (206) 624-0900

1 court for the district in which the applicant resides for a hearing on the matter" if CIS failed to

2 determine the applicant's naturalization application within 120 days of the initial examination

3 (the "notice subclass").

4

62. The requirements of Rule 23(a) are met in that the members of the proposed

5 plaintiff class are so numerous that joinder is impracticable, there are questions of law and fact

6 common to all members of the proposed plaintiff class, the claims of the named Plaintiffs are

7 typical of those of the proposed plaintiff class members, the claims of Plaintiffs Roshandel and

8 Ghazi-Moghaddam are typical of those ofthe notice subclass, and the named Plaintiffs will

9 fairly and adequately protect the interests of the proposed plaintiff class.

10

63. On information and belief, approximately 58,000 naturalization applications

11 nationwide are pending while awaiting completed name checks. Undersigned counsel is aware

12 of at least 31 individual lawsuits brought in the Western District of Washington since June 1,

13 2007 by persons similarly situated to Plaintiffs. Undersigned counsel is unaware of the exact

14 number of proposed class members, but believes that there are several hundred individuals

15 similarly situated to Plaintiffs residing in this judicial district. Because Defendants are best able

16 to determine the exact number of proposed class members, undersigned counsel will request

17 leave to serve Defendants with discovery requests targeted to this issue.

18

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

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

20 whether Defendants' failure to render a decision on the naturalization applications of the

21 proposed plaintiff class within 120 days of the date of naturalization examinations, due to

22 delays in name checks, violates the Immigration and Nationality Act and implementing

23 regulations and the Administrative Procedure Act; (2) whether Defendants' requiring a name

24 check as a prerequisite to naturalization violates the notice and comment requirement of the

25 Administrative Procedure Act; (3) whether Defendants' actions in unlawfully withholding and

26 unreasonably delaying the completion of name checks, with the full knowledge that CIS

FIRST AMENDED COMPLAINT - CLASS ACTION Case No. C07- 1739 MJP - 16
Seattle-3415416.1 0099820-00238

STOEL RIVES LLP ArrORNEYS
600 University Street, Suite 3600, Seattle, WA 98101 Telephone (206) 624-0900

1 requires the completion of such name checks before rendering a decision on naturalization

2 applications of the proposed plaintiff class, violates the Administrative Procedure Act; and (4)

3 whether Defendants' failure to provide notice of remedies available under 8 U.S.C. § 1447(b)

4 violates 8 U.S.C. § 1446.

5

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

6 members. The named Plaintiffs, like all class members, have not had their naturalization

7 applications determined within the statutorily mandated 120-day period following their

8 naturalization examinations, have been deprived of notice and an opportunity to comment on

9 the name check requirement, and have a decision on their applications for naturalization

10 unlawfully withheld or unreasonably delayed due to pending name checks.

11

66. The claims of Plaintiffs Roshandel and Ghazi-Moghaddam are typical of the

12 claims of the notice subclass. Plaintiffs Roshandel and Ghazi-Moghaddam were not informed

13 at their naturalization examinations of their statutory right to seek judicial review of

14 Defendants' unlawful conduct.

15

67. Like the named Plaintiffs, members of the proposed plaintiff class are suffering

16 injuries from the delay of their naturalization applications, including the inability to participate

17 in civic society by voting and jury service, the inability to sponsor immediate relatives for

18 lawful permanent resident status, the inability to travel freely as United States citizens",

19 ineligibility for jobs for which they are otherwise qualified, and the stigma of an uncertain

20 status in the country they have made their home and where they have established themselves as

21 partofacommunity.

22

68. Like Plaintiffs Roshandel and Ghazi-Moghaddam, the members of the notice

23 subclass are suffering injury because they were not informed of their statutory right to seek

24 judicial review of Defendants' unlawful conduct.

25

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

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

FIRST AMENDED COMPLAINT - CLASS ACTION Case No. C07- 1739 MJP - 17
Seattle-34l54l6.l 0099820-00238

STOEL RIVES LLP
ATTORNEYS
600 University Street, Suite 3600, Seattle, WA 98101 Telephone (206) 624-0900

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

2 represented by pro bono counsel including the American Civil Liberties Union of Washington

3 Foundation, the Northwest Immigrant Rights Project, and Stoel Rives LLP, who collectively

4 have extensive expertise in immigration law and class action litigation.

5

70. The requirements of Rule 23(b)(2) are also met because Defendants acted (or

6 failed to act) in an unlawful manner generally applicable to all proposed plaintiff class members

7 in failing to render a decision on the proposed plaintiff class members' naturalization

8 applications within the statutorily mandated 120-day period and otherwise unlawfully

9 withholding and unreasonably delaying agency actions, thereby making appropriate final relief

10 with respect to the class as a whole.

11

VI. DECLARATORY AND INJUNCTIVE RELIEF ALLEGATIONS

12

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

13 to their respective legal rights and duties. Plaintiffs contend that Defendants' actions violate

14 Plaintiffs' rights and the rights of proposed class members. Defendants contend the opposite.

15

72. Defendants' failure to timely process Plaintiffs' naturalization applications,

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

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

18

VII. CAUSES OF ACTION

19

COUNT ONE

20

RIGHT TO JUDICIAL DETERMINATION OF APPLICATION

21

FOR NATURALIZATION PURSUANT TO 8 U.S.C. § 1447(b)

22

[Against Defendants Chertoff, Gonzalez, Corsano, Harrison, and United States]

23

73. The allegations contained in paragraphs 1 through 64 above are repeated and

24 incorporated as though fully set forth herein.

25

74. Because Defendants have unlawfully failed to render a decision on proposed

26 plaintiff class members' naturalization applications within 120 days after the date of their

FIRST AMENDED COMPLAINT - CLASS ACTION Case No. C07- 1739 MJP - 18
Seattle-3415416.1 0099820-00238

STOEL RIVES LLP
ArrORNEYS 600 University Street, Suite 3600, Seattle, WA 98101
Telephone (206) 624-0900

1 naturalization examinations, each proposed plaintiff class member is entitled to a hearing on his

2 or her naturalization application by this Court under 8 U.S.C. § 1447(b).

3

75. This Court should grant proposed plaintiff class members' naturalization

4 applications pursuant to 8 U.S.C. § 1447(b), because each proposed plaintiff class member

5 meets all requirements for naturalization and is therefore entitled to be naturalized as a United

6 States citizen.

7

76. In the alternative, this Court should remand proposed plaintiff class members'

8 naturalization applications to CIS pursuant to 8 U.S.C. § 1447(b) with instructions to render a

9 decision on each proposed plaintiff class members' naturalization application within 90 days.

10

COUNT TWO

11

UNREASONABLE DELAY IN VIOLATION OF THE

12

ADMINISTRATIVE PROCEDURE ACT

13

[Against All Defendants]

14

77. The allegations contained in paragraphs 1 through 68 above are repeated and

15 incorporated as though fully set forth herein.

16

78. The Administrative Procedure Act requires administrative agencies to conclude

17 matters presented to them "within a reasonable time." 5 U.S.C. § 555(b). A district court

18 reviewing agency action may "compel agency action unlawfully withheld or unreasonably

19 delayed." 5 U.S.C. § 706(1). The district court also may hold unlawful and set aside agency

20 action that is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in

21 accordance with law," 5 U.S.C. § 706(2)(A); "in excess of statutory jurisdiction, authority, or

22 limitations, or short of statutory right," 5 U .S.C. § 706(2)(C); or "without observance of

23 procedure required by law," 5 U.S.C. § 706(2)(D). "Agency action" includes, in relevant part,

24 "an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to

25 act." 5 U.S.C. § 551(13).

26

FIRST AMENDED COMPLAINT - CLASS ACTION Case No. C07-1739MJP -19
Seattle-3415416.1 0099820-00238

STOEL RIVES LLP
ATIORNEYS
600 University Street, Suite 3600, Seattle, WA 98101 Telephone (206) 624·0900

1

79. The failure of Defendants Chertoff, Gonzalez, Corsano, Harrison and United

2 States to render a decision on the proposed plaintiff class members' naturalization applications

3 within 120 days of the date of their naturalization examinations on the basis of pending name

4 checks, in violation of8 U.S.C. § 1446(d) and 8 C.F.R. § 335, violates the Administrative

5 Procedure Act, 5 U.S.C. § 555(b), 706(1), 706(2)(A), 706(2)(C), 706(2)(D).

6

80. The failure of Defendants Mukasey, Mueller, and United States to timely

7 complete proposed plaintiff class members' name checks, with the full knowledge that CIS

8 requires the completion of such name checks before determining proposed plaintiff class

9 members' naturalization applications, violates the Administrative Procedure Act, 5 U.S.C. §§

10 555(b); 706(1), 706(2)(A), 706(2)(C), 706(2)(D).

11

81. As a result of Defendants' actions, proposed plaintiff class members have suffered

12 and continue to suffer injury. Declaratory and injunctive relief are therefore warranted.

13

COUNT THREE

14

FAILURE TO FOLLOW NOTICE-AND-COMMENT REQUIREMENTS

15

OF THE ADMINISTRATIVE PROCEDURE ACT

16

[Against Defendants Chertoff, Gonzalez, Corsano, Harrison, and United States]

17

82. The allegations contained in paragraphs 1 through 73 above are repeated and

18 incorporated as though fully set forth herein.

19

83. By regulation, CIS is required to receive the result of an FBI criminal background

20 check before a naturalization application can be granted. 8 C.F.R. § 335.2(b). In November

21 2002, CIS added a new substantive requirement to the naturalization process, known as a name

22 check, that goes beyond the criminal background check authorized by statute and regulation.

23 The name check constitutes a substantive rule that departs from prior policy and practice.

24

84. Defendants Chertoff, Gonzalez, Corsano, Harrison, and United States

25 implemented the "name check" requirement without public notice or providing a period for

26

FIRST AMENDED COMPLAINT - CLASS ACTION Case No. C07- 1739 MJP - 20
Seattle-3415416.10099820-00238

STOEL RIVES LLP ArroRNEYs
600 University Street, Suite 3600, Seattle, WA 98101 Telephone (206) 624-0900

1 public comment, even though the name check requirement has an adverse impact on individuals

2 whose naturalization applications are delayed due to the name check.

3

85. The failure to provide a notice-and-comment period before implementing the

4 "name check" requirement violates the Administrative Procedure Act, 5 U.S.C. § 553.

5

86. As a result of Defendants' actions, proposed plaintiff class members have suffered

6 and continue to suffer injury. Declaratory and injunctive relief are therefore warranted.

7

COUNT FOUR

8

FAILURE TO PROVIDE NOTICE OF REMEDIES

9

[Against Defendants Chertoff, Gonzalez, Corsano, Harrison, and United States]

10

87. The allegations contained in paragraphs 1 through 78 above are repeated and

11 incorporated as though fully set forth herein.

12

88. If a naturalization application is not granted at the time of the naturalization

13 interview, CIS is required to inform the applicant ofthe remedies available under 8 U.S.C.

14 1447(b). See 8 U.S.C. § 1446(b) (CIS officer "shall, at the examination, inform the applicant of

15 the remedies available to the applicant under section 1447 of this title" (emphasis added)).

16

89. Defendants Chertoff, Gonzalez, Corsano, Harrison, and United States failed to

17 provide the requisite notice to members of the proposed notice subclass.

18

90. As a result of Defendants' actions, proposed plaintiff class members have suffered

19 and continue to suffer injury. Declaratory and injunctive relief are therefore warranted.

20

PRAYER FOR RELIEF

21

WHEREFORE, Plaintiffs pray for entry of a judgment in favor of the proposed plaintiff

22 class and against Defendants as follows:

23

1. Assuming jurisdiction over the matter;

24

2. Certifying this case as a class action lawsuit, as proposed herein;

25

3. Granting proposed plaintiff class members' applications for naturalization

26 pursuant to 8 U.S.C. § 1447(b);

FIRST AMENDED COMPLAINT - CLASS ACTION Case No. C07- 1739 MJP - 21
Seattle-34154 16. 1 0099820-00238

STOEL RIVES LLP
ArrORNEYS 600 University Street, Suite 3600, Seattle, WA 98101
Telephone (206) 624-0900

1

4. In the alternative, ordering Defendants Mukasey, Mueller, and United States to

2 complete propos~d plaintiff class members' "name checks" within 60 days and ordering

3 Defendants Gonzalez, Chertoff, Corsano, Harrison, and United States to promptly render a

4 decision, in a time period not to exceed 90 days, on proposed plaintiff class members'

5 naturalization applications;

6

5. Declaring unlawful (a) the failure of Defendants Gonzalez, Chertoff, Corsano,

7 Harrison, and United States to grant applications for naturalization within 120 days ofthe date of

8 the naturalization examination; (b) the failure of Defendants Gonzalez, Chertoff, Corsano,

9 Harrison, and United States to notify naturalization applicants of their statutory remedies under 8

10 U.S.C. § 1447(b); (c) the failure of Defendants Mukasey, Mueller, and United States to complete

11 name checks within a reasonable time; and (d) Defendants' failures to take all necessary steps to

12 adjudicate applications for naturalization within 120 days of the date of the naturalization

13 examinations;

14

6. Declaring void and enjoining the name check process for failure to comply with

15 the Administrative Procedure Act's notice-and-comment requirement;

16

7. Enjoining Defendants' unlawful conduct;

17

8. Awarding reasonable attorney fees and costs pursuant to the Equal Access to

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

19

9. Granting any and all further relief that this Court deems just and proper.

20

21

II

22

II

23

II

24

II

25

II

26

FIRST AMENDED COMPLAINT - CLASS ACTION Case No. C07- 1739 MJP - 22
Seattle-3415416.l 0099820-00238

STOEL RIVES LLP AlTORNEYS
600 University Street, Suite 3600, Seattle, WA 98101 Telephone (206) 624-0900

1

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B DATED: April ,2008.

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STOEL RIVES LLP
Rita V. Latsinova, WSBA No. 24447 600 University Street, Suite 3600 Seattle, WA 98101 206-624-0900 (main) 206-386-7500 (fax) rvlatsinova@stoel.com
Alfred Arthur Day, WSBA No. 34926 7018 32nd Ave NW Seattle, WA 98117 206-920-3683 (main) alfred.day@comcast.net
AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION Sarah A. Dunne, WSBA No. 34869 Aaron H. Caplan, WSBA No. 22525 705 Second Avenue, Third Floor Seattle, WA 98104 206-624-2184 (main) dunne@aclu-wa.org caplan@aclu-wa.org
NORTHWEST IMMIGRANT RIGHTS PROJECT Matthew Adams, WSBA No. 28287 Christopher Strawn, WSBA No. 32243 615 Second Avenue, Suite 400 Seattle, WA 98104 206-549-4009 (main) matt@nwirp.org chris@nwirp.org
Attorneys for Plaintiffs

FIRST AMENDED COMPLAINT - CLASS ACTION Case No. C07- 1739 MJP - 23
Seattle-3415416.l 0099820-00238

STOEL RIVES LLP AlTORNEYS
600 Universit~Street, Suite 3600, Seattle, WA 98101 Telephone (206) 624-0900

1

2

CERTIFICATE OF SERVICE

3

I hereby certify that on April 8, 2008 I electronically filed the foregoing document with

4 the Clerk of the Court using the CMlECF system, which will send notification of such filing to

5 the following:

6 Aaron H. Caplan caplan@aclu-wa.org
7 Counsel for Plaintiffs
8 Christopher Strawn chris@nwirp.org
9 Counsel for Plaintiffs
10 Matt Adams matt@nwirp.org
11 Counsel for Plaintiffs
12 Sarah A. Dunne dunne@aclu-wa.org
13 Counsel for Plaintiffs
14

Rebecca S. Cohen rebecca.cohen@usdoj.goy Counsel for Defendants
Nancy Safayi Nancy .Safayi@usdoj.goy Counsel for Defendants

15

DATED: April 8, 2008.

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STOEL RIVES LLP
IslRita v. Latsinova Rita v. Latsinova, WSBA No. 24447 600 University Street, Suite 3600 Seattle, WA 98101 206-624-0900 (main) 206-386-7500 (fax) rvlatsinova@stoel.com
Attorneys for Plaintiffs

23

24

25

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FIRST AMENDED COMPLAINT - CLASS ACTION Case No. C07- 1739 MJP - 24
Seattle-3415416.l 0099820-00238

STOEL RIVES LLP ATIORNEYS
600 Universit~Street, Suite 3600, Seattle, WA 98101 Telephone (206) 624-0900

 </s> Case 2:07-cv-01739-MJP Document 28 Filed 04/25/08 Page 1 of 14

1

2

3

4

UNITED STATES DISTRICT COURT

5

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

6

7 ROSHANAK ROSHANDEL; VAFA GHAZI-

8

MOGHADDAM; HAWO AHMED; LIN HUANG; AHMAD ALKABRA; MOHAMMAD REZA

9

AIDINEJAD, and ZAHRA ABEDIN, individually and on behalf of all others similarly situated,

10 Plaintiffs,

11 v.

12

MICHAEL CHERTOFF, Secretary, United States 13 Department of Homeland Security; EMILIO

GONZALEZ, Director, United States Citizenship 14 and Immigration Services, ANN CORSANO,

15

Director, District 20, United States Citizenship and Immigration Services; JULIA HARRISON,

16

Director, Seattle Field Office, United States Citizenship and Immigration Services; MICHAEL

17 B. MUKASEY, Attorney General, United States Department of Justice; ROBERT MUELLER III,

18 Director, Federal Bureau of Investigation; and the UNITED STATES OF AMERICA,

19

Defendants.

20

Case No. C07-1739MJP
ORDER GRANTING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

21

This matter comes before the Court on Plaintiffs’ motion for class certification. (Dkt. No.

22 4.) Defendants filed a response to the motion (Dkt. No. 15) and Plaintiffs filed a reply (Dkt. No.

23 16). Having considered the parties’ briefs and all documents submitted in support, and having

24 heard oral argument on the issues, the Court GRANTS Plaintiffs’ motion for class certification.

25

26

27
ORDER — 1

Case 2:07-cv-01739-MJP Document 28 Filed 04/25/08 Page 2 of 14

1

Background

2

This action involves delayed naturalization applications allegedly due to a pending “name

3 check” with the Federal Bureau of Investigation (“FBI”). Plaintiffs are lawful permanent residents

4 of the United States who have applied with the United States Citizenship and Immigration

5 Services (“USCIS”) to be naturalized as United States citizens. Defendants are Michael Chertoff,

6 Secretary of the United States Department of Homeland Security; Emilio Gonzalez, Director of

7 USCIS; Ann Corsano, Director of USCIS District 20; Julia Harrison, Director of the USCIS

8 Seattle Field Office; Michael B. Mukasey, United States Attorney General; Robert Mueller III,

9 Director of the FBI; and the United States of America.

10

Each Plaintiff’s application has been pending for at least two (2) years since passing his or

11 her naturalization examination. (Dkt. No. 21, First Amended Complaint [hereinafter “Compl.”] ¶

12 2.) Plaintiffs Roshandel, Ghazi-Moghaddam, Ahmed, Huang, Alkabra, and Abedin were each told

13 by USCIS that their applications were not yet complete due to a pending name check. (Id. ¶¶ 11,

14 16, 21, 26, 29, and 34.) Plaintiffs allege that they have met all legal requirements for

15 naturalization. (Compl. ¶ 2.)

16 I. The Naturalization Process

17

Persons seeking naturalization must submit an application to USCIS, the agency

18 responsible for adjudicating naturalization applications. See 8 U.S.C. § 1445; 8 C.F.R. § 100.2(a)-

19 (f); 6 U.S.C. § 291 (abolishing the INS). A naturalization applicant must meet certain

20 requirements under the Immigration and Naturalization Act (“INA”), including an understanding

21 of the English language and history of the United States, and good moral character. 8 U.S.C §§

22 1423, 1427. USCIS is required to grant the application if the applicant meets all statutory

23 requirements for naturalization. 8 C.F.R. § 335.3(a).

24

Once an application is submitted, USCIS conducts an investigation of each naturalization

25 applicant. See 8 U.S.C. § 1446(a); 8 C.F.R. § 335.1. Under USCIS regulations, the investigation

26 includes a “full criminal background check” performed by the FBI. 8 C.F.R. § 335.2(b). USCIS

27
ORDER — 2

Case 2:07-cv-01739-MJP Document 28 Filed 04/25/08 Page 3 of 14

1 cannot adjudicate any naturalization application without a “definitive response” from the FBI that

2 a full criminal background check has been completed. Id. USCIS also conducts a naturalization

3 interview, at which an applicant meets with a USCIS officer who asks questions and takes

4 testimony. 8 C.F.R. §§ 335.1, 335.2(a). At the interview, the USCIS officer is required to inform

5 the applicant of the remedies available to the applicant under section 1447(b). 8 U.S.C. § 1446(b).

6 Under USCIS regulations, applicants are supposed to be interviewed only after the FBI has

7 completed its full background check. 8 C.F.R. § 335.2(b).1

8

The regulations require that USCIS make a decision to grant or deny the application either

9 at the initial examination or within 120 days of the date of the initial examination. See 8 C.F.R. §

10 335.3(a) (“A decision to grant or deny the application shall be made at the time of the initial

11 examination or within 120-days after the date of the initial examination of the applicant for

12 naturalization under § 335.2.”). If USCIS fails to render a decision on a naturalization application

13 within 120 days of the applicant’s naturalization examination, the applicant may seek district court

14 adjudication of his or her application. 8 U.S.C. § 1447(b). The court may either determine the

15 application, or remand the application to the agency with instructions. Id. Once a plaintiff has

16 filed a petition under section 1447(b), the district court assumes exclusive jurisdiction over the

17 naturalization application. United States v. Hovsepian, 359 F.3d 1144, 1161 (9th Cir. 2004).

18 II. The Name Check Requirement

19

Plaintiffs allege that in 2002, without promulgating any regulations and without statutory

20 authorization, USCIS “dramatically altered the naturalization process by requiring that all

21

22

1 Contrary to USCIS’s own regulations, members of the proposed class were all interviewed

prior to the completion of their full background check. Apparently, USCIS now waits until 23 background investigations are complete before conducting an applicant’s examination interview.

24

Stepchuk v. Gonzales, No. C06-570RSL, 2006 WL 3361776, *5 n. 6 (W.D. Wash. Nov. 17, 2006) (C.J. Lasnik) (noting that, “perhaps in response to the growing number of lawsuits that have resulted

25 from the combination of lengthy background checks and [US]CIS’s deviation from the course of

action dictated in its regulation, the agency recently declared its renewed intention to conduct

26 examinations only after receiving the results of an applicant’s criminal background check”). The

27 proposed class is therefore a shrinking one.

ORDER — 3

Case 2:07-cv-01739-MJP Document 28 Filed 04/25/08 Page 4 of 14

1 applicants pass a ‘name check’ by the FBI before final approval.” (Compl. ¶ 40.) According to

2 the complaint, a name check is a search of FBI records and other records the FBI has access to

3 based on the name of the applicant. (Id.) Plaintiffs allege that the name check is implemented in

4 such a manner that an applicant may be erroneously identified as a “person of interest” to the FBI,

5 thereby delaying adjudication of the naturalization application, even though the applicant has

6 committed no crimes and is not a suspect, and even though the name check revealed no other

7 information bearing on eligibility for naturalization. (Compl. ¶ 50.) Plaintiffs further allege that

8 USCIS will not grant naturalization applications until it receives a completed background check

9 from the FBI, and that neither USCIS nor the FBI has imposed any timeline for completion of the

10 name checks. (Compl. ¶ 52.)

11 III. The Class Action Complaint

12

Plaintiffs’ complaint states four causes of action: (1) right to judicial determination of

13 Plaintiffs’ naturalization applications pursuant to 8 U.S.C. § 1447(b); (2) unreasonable delay in

14 violation of the Administrative Procedure Act (“APA”), 8 U.S.C. § 555(b); (3) failure to follow

15 notice-and-comment requirements of the APA, 8 U.S.C. § 553; and (4) failure to provide notice

16 of remedies as required by 8 U.S.C. § 1446(b).2 Plaintiffs now move to certify a class comprised

17 of the following members:

18

All lawful permanent residents of the United States residing in the Western District

of Washington who have submitted naturalization applications to [US]CIS but whose

19

naturalization applications have not been determined within 120 days of the date of

their initial examination due to the pendency of a “name check.”

20

Discussion

21

I. Standing

22

Standing is a jurisdictional element that must be satisfied prior to class certification. Lee

23

v. State of Oregon, 107 F.3d 1382, 1390 (9th Cir. 1997). In order to assert claims on behalf of a

24

class, “a named plaintiff must have personally sustained or be in immediate danger of sustaining

25

26

2

Plaintiffs’ claim under Count Four, Failure to Provide Notice of Remedies, is

27 applicable only to a proposed subclass. Plaintiffs do not ask the subclass to be certified at this time.

ORDER — 4

Case 2:07-cv-01739-MJP Document 28 Filed 04/25/08 Page 5 of 14

1 ‘some direct injury as a result of the challenged statute or official conduct.’” Armstrong v. Davis,

2 275 F.3d 849, 860 (9th Cir. 2001) (quoting O’Shea v. Littleton, 414 U.S. 488, 494 (1974)).

3 “The harm suffered by a plaintiff must constitute ‘actual injury.’” Id. (quoting Lewis v. Casey,

4 518 U.S. 343, 348-49 (1996)).

5

The Government argues that Plaintiffs fail to demonstrate actual harm because there is no

6 right to naturalization until all the statutory requirements are met. Not only does this argument

7 assume that the name check is a statutory requirement, which is itself at issue in this litigation,

8 but it ignores the fact that under 8 C.F.R. § 335.3(a) and 8 U.S.C. § 1447(b), Plaintiffs are

9 entitled to a naturalization decision by USCIS within 120 days of their naturalization

10 examination. Congress may enact statutes creating legal rights, the invasion of which creates

11 standing, even though no injury would exist without the statute. See Warth v. Seldin, 422 U.S.

12 490, 514 (1975). Thus, even assuming that Plaintiffs do not have a right to naturalization, that

13 does not mean they do not have a right to a prompt adjudication of their naturalization

14 application. Plaintiffs, each deprived a naturalization decision within 120 days of their interview,

15 are injured by the delay itself and have standing to enforce that right.

16

Plaintiffs also allege injuries beyond the delay itself, injuries that are a direct result of the

17 challenged name check policy. Plaintiffs state in their complaint that they are unable to vote or

18 serve on juries, they are unable to travel abroad without fear of being denied re-entry into the

19 United States, and they are ineligible for jobs for which they are qualified. (Compl. ¶ 3.) In an ill-

20 considered argument, the Government suggests that the inability to vote is not a harm sufficient

21 to confer standing:

22

With respect to voting, simply because Plaintiffs are not United States citizens does

not mean that they are unable to participate in civic society. The inability to vote

23

does not render someone apolitical. Should a person sincerely be interested in

politics, he or she can still participate in the political process by assisting with

24

campaigns, attending political functions or providing monetary donations, and he or

she may do so freely.

25

26 (Defs.’ Opp. at 8.) This suggestion that Plaintiffs should be resigned to participate vicariously in

27
ORDER — 5

Case 2:07-cv-01739-MJP Document 28 Filed 04/25/08 Page 6 of 14

1 civic society is shocking, offensive, and wrong. It echoes the sentiments of those who challenged

2 women’s suffrage, suggesting that women should be content to participate in the political

3 process vicariously through their husbands’ votes.

4

We might as well be dogs baying the moon as petitioners without the right to

vote!

5

6 Susan B. Anthony, speech on November 16, 1895 (as quoted in The Life and Work of Susan B.

7 Anthony, ch. 44, by Ida Husted Harper (1898) (reprinted in The Columbia World of Quotation

8 (Columbia University Press, 1996))), available at www. bartleby.com/br.66.html (last visited

9 April 25, 2008).

10

The Government’s argument also flies in the face of the Supreme Court’s repeated

11 conclusion that the right to vote is the most basic and fundamental of our constitutionally

12 protected rights: “No right is more precious in a free country than that of having a voice in the

13 election of those who make the laws under which, as good citizens, we must live. Other rights,

14 even the most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders, 376

15 U.S. 1, 17 (1964).

16

Rightfully, the Government does not even attempt to argue that the inability to serve on

17 juries does not cause harm. See Powers v. Ohio, 499 U.S. 400, 407 (1991) (“With the exception

18 of voting, for most citizens the honor and privilege of jury duty is their most significant

19 opportunity to participate in the democratic process.”). The Government does argue, however,

20 that the difficulties Plaintiffs have experienced with travel are either individual-specific or no

21 worse than those suffered by American citizens in a post-9/11 world. Two named Plaintiffs

22 specifically allege that they experience increased scrutiny when traveling due to their immigration

23 status. (Compl. ¶¶ 12 and 17.) Moreover, a lawful permanent resident who remains abroad for

24 more than a temporary period may be refused re-admission to the United States. See 22 C.F.R. §

25 42.22. The Court rejects the Government’s argument that the difficulties Plaintiffs experience in

26 traveling is immaterial — taking off one’s shoes pales in comparison to not being able to return

27
ORDER — 6

Case 2:07-cv-01739-MJP Document 28 Filed 04/25/08 Page 7 of 14

1 to one’s home. All of these factors — the inability to vote, inability to serve on juries, and

2 difficulty traveling — are harms sufficient to confer standing.

3

Finally, in a case such as this one, where class plaintiffs seek prospective injunctive relief,

4 they must also demonstrate that they are realistically threatened by a repetition of the alleged

5 violation.” Armstrong, 275 F.3d at 860 (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 109

6 (1983)). Plaintiffs may show that injury is likely to recur by demonstrating that the harm is part

7 of a “pattern of officially sanctioned . . . behavior, violative of the plaintiffs’ [federal] rights.” Id.

8 at 861 (quoting LaDuke v. Nelson, 762 F.2d 1318, 1323 (9th Cir. 1985)). “Thus, where the

9 defendants have repeatedly engaged in the injurious acts in the past, there is a sufficient

10 possibility that they will engage in them in the near future to satisfy the ‘realistic repetition’

11 requirement.” Id.

12

Here, the existence of a policy and practice of delay in naturalization applications due to

13 pending name checks is not reasonably in dispute.3 Plaintiffs, for their part, have alleged delay-

14 based injuries stemming directly from this name check requirement, including their inability to

15 vote and to serve on juries, their inability to travel abroad without fear of being denied re-entry

16 into the United States, and ineligibility for jobs for which they are qualified. (Compl. ¶ 3.) Thus,

17 the Court concludes that the existence of the name check policy within USCIS means that

18 unnamed and future class members will face contested delays in the future, be it before the

19 completion of the naturalization interview or after. Plaintiffs have standing to bring their class

20 claims.

21 II. Mootness

22

After Plaintiffs moved for class certification, the FBI completed the name checks of the

23 four named plaintiffs and USCIS announced that it was ready to immediately adjudicate their

24

3

In the last year, approximately 31 claims against USCIS for delayed naturalization

25 applications due to a pending name check heard before this Judge alone. See e.g., Abo Ghanim v.

Gonzales, No. C07-0594MJP, 2007 WL 2712387 (W.D. Wash. Sept. 14, 2007) (adjudication of

26 naturalization application delayed because of pending name check); Said v. Gonzales, No. C06-

27 986MJP, 2006 WL 2789344 (W.D. Wash. Sept. 24, 2007) (same).

ORDER — 7

Case 2:07-cv-01739-MJP Document 28 Filed 04/25/08 Page 8 of 14

1 naturalization applications. Defendants then opposed class certification, in part, on the grounds

2 that Plaintiffs claims were moot. Plaintiffs have since filed an amended complaint (Dkt. No. 21)

3 adding three additional named plaintiffs whose name checks have not been completed.4 Because

4 three of the named plaintiffs’ claims present live controversies, their claims are not moot, and the

5 modification in class representation has no effect on the viability of the class as a whole. See

6 Swisher v. Brady, 438 U.S. 204, 213 (1978) (holding that a live controversy remained, and a

7 class was properly certified, where the adversity between the defendant and all but one of the

8 named plaintiff had been mooted). In addition, the Court notes that subsequent resolution of

9 remaining named plaintiffs’ claims following certification of this class will not moot this class

10 action. See County of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991) (holding that the

11 mootness of named plaintiffs does not defeat class claims where unnamed class members

12 continued to present justiciable claims and where the class has already been certified under Rule

13 23); Sosna v. Iowa, 419 U.S. 393, 399-400 (1975). The three new named plaintiffs may

14 represent the class.

15 III. Class Certification Standard

16

Class actions are governed by Federal Rule of Civil Procedure 23. The party seeking

17 class certification bears the burden of demonstrating that he or she has met all four requirements

18 in Rule 23(a) and at least one of the requirements of Rule 23(b). Zinser v. Accufix Research

19 Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001). Although the trial court has broad discretion in

20 deciding whether to certify a class, the trial court must conduct a “rigorous analysis” to

21 determine whether the party seeking certification has satisfied all the necessary Rule 23 elements.

22 Id. To satisfy subsection (a), Plaintiffs must show that (1) the class is so numerous that joinder

23 of all members is impracticable (“numerosity”), (2) there are questions of law or fact common to

24

25

4

Since oral argument, the Government has requested permission to apprise the Court

of the status of the name checks for the remaining named plaintiffs. Because that request to consider

26 additional material does not ripen until May 9, 2008, the Court has not yet ruled on whether to

27 consider the additional material and so does not consider it here.

ORDER — 8

Case 2:07-cv-01739-MJP Document 28 Filed 04/25/08 Page 9 of 14

1 the class (“commonality”), (3) the claims or defenses of the representative parties are typical of

2 the claims or defenses of the class (“typicality”), and (4) the representative parties will fairly and

3 adequately protect the interests of the class (“adequacy of representation”). Fed. R. Civ. P.

4 23(a). Plaintiffs must also satisfy one of the elements in subsection (b). Here, Plaintiffs argue

5 that they satisfy (b)(2), which provides as follows:

6

[T]he party opposing the class has acted or refused to act on grounds generally

applicable to the class, thereby making appropriate final injunctive relief or

7

corresponding declaratory relief with respect to the class as a whole.

8 Fed. R. Civ. P. 23(b)(2).

9 IV. Rule 23(a)

10

The Government argues that Plaintiffs have not shown commonality, typicality, or

11 adequacy of representation. The Government does not dispute that the class as defined is so

12 numerous that joinder is impracticable.

13

1. Commonality and Typicality

14

Rule 23(a)(2) requires that there be “questions of law or fact common to the class.”

15 “‘All questions of fact and law need not be common to satisfy the rule. The existence of shared

16 legal issues with divergent factual predicates is sufficient, as is a common core of salient facts

17 coupled with disparate legal remedies within the class.’” Staton v. Boeing, 327 F.3d 938, 953

18 (9th Cir. 2003) (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir.1998)). Courts

19 have found that this element can be met by raising a single common issue that is central to the

20 class. See Slaven v. BP America, Inc., 190 F.R.D. 649, 655 (C.D. Cal. 2000). Here, all

21 Plaintiffs’ naturalization applications have been delayed because of the FBI name check, and all

22 Plaintiffs challenge the legality of the delayed adjudication. Because all Plaintiffs, whether

23 present or future members of the class, challenge the legality of the same government program,

24 they inherently share common issues. See LaDuke, 762 F.2d at 1332 (holding that case

25 challenging the constitutionality of an INS procedure “plainly” created common questions of law

26 and fact).

27
ORDER — 9

Case 2:07-cv-01739-MJP Document 28 Filed 04/25/08 Page 10 of 14

1

Defendants concede that there are “some common issues of law and fact,” but suggest

2 that, because “individual issues predominate” in the inquiry into whether adjudication delay is

3 reasonable and in the naturalization decision itself, class treatment is improper. (Opp. Mot. at

4 14-15.) This is not an appropriate factor to consider on a motion for 23(b)(2) certification:

5 “Although common issues must predominate for class certification under Rule 23(b)(3), no such

6 requirement exists under 23(b)(2).” Walters v. Reno, 145 F..3d 1032, 1047 (9th Cir. 1998)

7 (rejecting defendants’ argument that factual distinctions in plaintiffs’ cases undermined common

8 allegations that INS procedures provide insufficient notice). Moreover, as Plaintiffs explained at

9 oral argument, they do not seek naturalization of the class as a whole. Whether Plaintiffs meet

10 the individual requirements for naturalization and whether individual factors caused the delay in

11 adjudication is irrelevant to class certification in this case.

12

Defendants also argue that the time taken to complete background checks is “reasonable”

13 and that the FBI name check is not the sole reason for delay. However, the reasonableness and

14 legality of Defendants’ policies and practices are not matters for the Court to consider on a

15 motion for class certification. See Eisen v. Carlisle, 417 U.S. 156, 177-78 (1974) (improper for

16 court to consider merits in denying motion for class certification). The Court finds that Plaintiffs

17 have satisfied the commonality requirement.

18

In regards to the typicality element, “a plaintiff’s claims are typical if they arise from the

19 same event or practice or course of conduct that gives rise to the claims of other class members

20 and are based on the same legal or remedial theory.” 1 Alba Conte & Herbert Newberg,

21 Newberg on Class Actions § 3:19, at 401 (4th ed. 2002); see also Alpern v. Utilicorp United,

22 Inc., 84 F.3d 1525, 1540 (8th Cir. 1996). “Under the rule’s permissive standards, representative

23 claims are ‘typical’ if they are reasonably coextensive with those of absent class members; they

24 need not be substantially identical.” Dukes v. Wal-Mart, Inc., 509 F.3d 1168, 1184 (9th Cir.

25 2007) (quoting Hanlon, 150 F.3d at 1020). Here, the claims of the named plaintiffs are typical of

26 those of the class because all of the potential plaintiffs suffered delayed naturalization

27
ORDER — 10

Case 2:07-cv-01739-MJP Document 28 Filed 04/25/08 Page 11 of 14

1 adjudications due to the name check requirement. Any differences in the length of delay or

2 subsequent consequences are immaterial for purposes of class typicality, which is concerned with

3 the class members’ shared interests and harms. See generally General Telephone Co. of the

4 Southwest v. Falcon, 457 U.S. 147, 156 (1982). Plaintiffs have satisfied the typicality

5 requirement.

6

2. Adequacy

7

To satisfy the adequacy requirement, plaintiffs must show that their interests are not

8 antagonistic to those of the class and that they are able to prosecute the action vigorously

9 through qualified and competent counsel. Linney v. Cellular Alaska P’ship, 151 F.3d 1234, 1238-

10 39 (9th Cir. 1998). The Government argues that the Plaintiffs’ claims are antagonistic because

11 the relief sought — an injunction that would require adjudication of the class member’s

12 applications and completion of their name checks — would disrupt the FBI’s current policy of

13 completing name checks in the order in which they are received. An injunction would allow class

14 members whose applications have been pending for shorter periods of time to “jump ahead” to

15 the front of the line. But class treatment would not create antagonism among class members

16 because all class members would be treated in exactly the same manner — an injunction would

17 likely instruct USCIS to complete the name checks and adjudicate all naturalization applications

18 by the same date certain.

19

The Court recognizes, however, that if certification is granted, the Court’s exclusive

20 jurisdiction over section 1447(b) petitions will sweep up and place on hold all pending individual

21 naturalization applications falling within the proposed class, including those whose name checks

22 are completed during the pendency of this litigation. See Hovsepian, 359 F.3d at 1161-64 (holding

23 that 8 U.S.C. § 1447(b) provides district court with exclusive jurisdiction over naturalization

24 applications). The Court can address this issue by allowing potential class members to opt-out of

25 the class. The Ninth Circuit recently noted that, “a district court’s discretion to include an opt-out

26 notice is well-established.” Dukes, 509 F.3d at 1189 (noting that district courts have discretion to

27
ORDER — 11

Case 2:07-cv-01739-MJP Document 28 Filed 04/25/08 Page 12 of 14

1 order notice and opt-out rights when certifying a Rule 23(b)(2) class); see also Fed. R. Civ. P.

2 23(d)(1)(B). Although Dukes involved a “hybrid” Rule 23(b)(2) class seeking both injunctive

3 relief and damages, the Court nonetheless has broad discretion in fashioning appropriate relief, and

4 may require notice and the right to opt-out under its discretionary authority provided in Rule

5 23(d)(1)(B). Given the potential for further delay in naturalization decisions as a result of the class

6 action, potential members of the class may decide to opt-out and have their applications

7 adjudicated by USCIS outside the context of this litigation.

8 V. Rule 23(b)(2)

9

Rule 23(b)(2) applies when “the party opposing the class has acted or refused to act on

10 grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory

11 relief is appropriate respecting the class as a whole[.]” Fed. R. Civ. P. 23(b)(2). The rule was

12 “intended to reach situations where a party has taken action or refused to take action with respect

13 to a class, and final relief of an injunctive nature or of a corresponding nature, settling the legality

14 of the behavior with respect to the class as a whole, is appropriate.” Fed. R. Civ. P. 23, Comment

15 to Subdivision (b)(2).

16

At least one other district court has certified a Rule 23(b)(2) class in an immigration case

17 challenging the government’s policies and practices of delay. See Santillan v. Ashcroft, No. C 04-

18 2686 MHP, 2004 WL 2297990 (N.D. Cal. Oct. 12, 2004) (certifying under Rule 23(b)(2) a class

19 action against USCIS based on delays in the issuance of documentation of their status as

20 temporary or permanent lawful permanent residents due to pending background checks). In this

21 case, the Government imposes a name check requirement that must be completed before

22 naturalization applications can be adjudicated. Plaintiffs seek injunctive relief to end the delay and

23 to change these national policies and practices. Plaintiffs’ case thus satisfies the dual requirements

24 of Rule 23(b)(2).

25

The Government argues that the class should not be certified because Plaintiffs’ request for

26 section 1447(b) relief in the form of a class-wide remand to USCIS is “impracticable,”

27
ORDER — 12

Case 2:07-cv-01739-MJP Document 28 Filed 04/25/08 Page 13 of 14

1 “insurmountable,” and “would cause further delays in processing other applications, such as those

2 for adjustment of status.” (Defs.’ Opp. Mot. at 3-4.) The Court recognizes that it may be the first

3 district court to certify a class under section 1447(b).5 However, the Government’s argument

4 confuses the question of appropriate remedy with the question of the best procedural tool for

5 resolving common questions of law. Nothing in section 1447(b), or common sense, precludes

6 resolving Plaintiffs’ section 1447(b) or APA claims on a class-wide basis.

7

Conclusion

8

The Court concludes that the requirements under Rule 23(a) and (b)(2) are met and class

9 certification is appropriate. It is hereby ORDERED that:

10

1. The Plaintiffs’ motion for class certification is GRANTED.

11

2. The Court therefore CERTIFIES a class comprised of the following members:

12

All lawful permanent residents of the United States residing in the Western District of

Washington who have submitted naturalization applications to USCIS but whose

13

naturalization applications have not been determined within 120 days of the date of

their initial examination due to the pendency of a “name check.”

14

3. The named class representatives are Ahmad Alkabra, Mohammad Reza Aidinejad,

15

and Zahra Abedin.

16

4. The counsel of named plaintiffs is counsel for the class.

17

5. Notice and an opportunity to opt-out shall be provided to the plaintiff class.

18

It is further ordered that counsel shall meet and confer and submit a proposed class notice in

19

20

5

It appears that no district court has yet certified such a class; and, in many cases

21 Plaintiffs have not sought certification under section 1447(b). See Ahamadi v. Chertoff, No. C0703455WHA (N.D. Cal. 2008) (in class action involving name check delays, pending motion seeks

22 class certification on claims under the APA only); Mocanu v. Mueller, No. 07-445, 2008 WL 154606,

at *4-5 (E.D. Pa. Jan. 11, 2008) (granting summary judgment for plaintiffs in class action involving 23 name check delay claims under APA only); Antonishin v. Keisler, No. 06 CV 2518, 2007 WL

24

2788841, at *4 (N.D. Ill. Sept. 20, 2007) (prior to Plaintiffs’ motion for class certification, granting motion to dismiss putative class name check delay claims under the APA and remanding individual

25 section 1447(b) claims to USCIS for adjudication); Yakubova v. Chertoff, No. 06-CV-3203, slip op.

at 3 (E.D.N.Y. Nov. 2, 2006) (attached to Dkt. No. 13, Pls.’ Resp. Mot., Ex. 4) (declining to rule

26 on class certification involving both section 1447(b) and APA claims without the benefit of discovery;

27 no certification motion currently pending).

ORDER — 13

Case 2:07-cv-01739-MJP Document 28 Filed 04/25/08 Page 14 of 14

1 compliance with this order within fifteen (15) days of the date of this order.

2

The clerk is directed to send copies of this order to all counsel of record.

3

Dated: April 25, 2008.

4

5

s/ Marsha J. Pechman

6

Marsha J. Pechman

7

United States District Judge

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27
ORDER — 14

 </s> 1

2

3

4

UNITED STATES DISTRICT COURT

5

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

6

7 ROSHANAK ROSHANDEL; VAFA GHAZI-

8

MOGHADDAM; HAWO AHMED; LIN HUANG; AHMAD ALKABRA; MOHAMMAD REZA

9

AIDINEJAD; and ZAHRA ABEDIN, individually and on behalf of all others similarly situated,

10 Plaintiffs,

11 v.
12 MICHAEL CHERTOFF, et al.,
13
Defendants. 14

Case No. C07-1739MJP
ORDER GRANTING JOINT MOTION TO AMEND CLASS DEFINITION

15

This matter comes before the Court on the parties’ agreed motion for clarification. (Dkt.

16

No. 36.) On April 25, 2008, the Court granted Plaintiffs’ motion for class certification and

17

certified the following class:

18

All lawful permanent residents of the United States residing in the Western District

19

of Washington who have submitted naturalization applications to USCIS but whose

naturalization applications have not been determined within 120 days of the date of

20

their initial examination due to the pendency of a “name check.”

21 (Dkt. No. 29, Order Granting Class Certification, p. 13.) The Court directed the parties to file a

22 proposed class notice. The parties have provided the Court with a proposed class notice and now

23 jointly seek clarification regarding the class definition. Although filed jointly, the motion asks the

24 Court to choose between two separate amended class definitions. Having considered the joint

25 motion for clarification and the balance of the record, the Court AMENDS its class definition as

26 follows:

27
ORDER — 1

1

All lawful permanent residents of the United States residing in the Western District

of Washington who have submitted naturalization applications to USCIS and (1)

2

whose naturalization applications were not determined within 120 days of the date of

their initial examination, (2) whose name checks remained pending on the 120th day

3

after their initial examination, (3) whose FBI name checks remained pending on

October 29, 2007, and (4) whose naturalization applications were not adjudicated as

4

of April 25, 2008.

5

“[R]esiding in the Western District of Washington” means that an applicant was a

resident of the Western District of Washington at the time the application was filed,

6

or that the applicant subsequently moved into the Western District of Washington and

informed USCIS of his or her change of address. Applicants who filed in the Western

7

District of Washington but who have subsequently moved are not part of the class.

8

Discussion

9

This case is about delayed naturalization applications due to the pendency of an FBI name

10 check. Plaintiffs’ complaint is clear that the issue Plaintiffs are targeting is the FBI name check

11 process, and not any other potential cause of delayed naturalization application adjudications. For

12 example, Plaintiffs alleged that the named plaintiffs’ claims were typical of the class because all

13 class members “have [had] a decision on their applications for naturalization unlawfully withheld

14 or unreasonably delayed due to pending name checks.” (Am. Compl. ¶ 65 (emphasis added); see

15 also Order Granting Class Certification, p. 10.) Plaintiffs’ complaint contains an entire section on

16 the “name check requirement,” explaining that, at USCIS’s request, “the FBI conducts name

17 checks on all naturalization applicants” (Am. Compl. ¶ 49) and that “CIS will not grant

18 naturalization applications until it receives a completed name check from the FBI” (id. ¶ 52).1

19 Plaintiffs’ preliminary statement in their complaint alleges that “Defendants have ... unlawfully and

20 unreasonably delayed rendering a decision on Plaintiffs’ naturalization applications on the ground

21 that a so-called ‘name check’ ... remains pending.” (Id. ¶ 2.) Thus, the Court understands

22 Plaintiffs’ suit to be seeking a remedy to the delay in the naturalization adjudication process

23

1

Plaintiffs now argue that the “name check” process includes “ CIS’s processing of

24 name checks, including, for example, situations in which CIS performs additional investigation based

25 on the results of the FBI’s results.” (Agreed Motion, p. 2 n.1.) (Emphasis added.) This argument conflicts with Plaintiffs’ allegations in their complaint where they state that USCIS requests that the

26 FBI conduct the name check and that USCIS waits to adjudicate the application until it receives the

completed name check from the FBI. 27

ORDER — 2

1 caused by the FBI name check process.

2

Nevertheless, Plaintiffs seek an amended class definition that would expand the class to

3 include individuals whose naturalization applications are delayed, not because of a delayed name

4 check, but for some other reason. Plaintiffs propose an interpretation of the Court’s class

5 definition that encompasses “any and all lawful permanent residents residing in the Western

6 District of Washington (1) who, on or after October 29, 2007, had waited more than 120 days

7 from the date of their initial examination for an adjudication of their naturalization applications

8 and (2) whose name checks remained pending on the 120-day anniversary of their initial

9 examination.” Thus, someone who applied on January 1, 2006, was interviewed on June 1, 2006,

10 and whose name check was completed on January 1, 2007, but whose naturalization application

11 remained pending on October 29, 2007, would be included in the class. The Court did not intend

12 to include in the class individuals whose applications remain pending for a reason other than the

13 delayed FBI name check process. The Court will not accept Plaintiffs’ over-inclusive amended

14 class definition.

15

Defendants propose an amended class definition that excludes naturalization applicants

16 whose name checks were completed prior to the date Plaintiffs filed their complaint — October

17 29, 2007. This interpretation ensures that the class only includes applicants whose continued

18 delayed adjudications are due to delays in the FBI name check process. The Court acknowledges

19 that Defendants’ interpretation is under-inclusive and imprecise. It will exclude those individuals

20 whose adjudication delays resulted from a lengthy name check process, but whose name checks

21 were completed just before Plaintiffs filed suit. It will also exclude, however, those individuals

22 whose adjudications were delayed both by a more-than-120-day-FBI name check and other

23 sources of delay. Someone whose name check was completed on the 121st day after the

24 interview, but whose application remained pending for years afterwards, does not fall within the

25 class of applicants whose applications are delayed due to the pendency of a name check. Without

26 conducting an investigation into the circumstances of the delay for each individual potential class

27
ORDER — 3

1 member, neither the Court nor the parties can know exactly the source or sources of the delay for

2 all potential members. Because this is a class action (and such individualized inquiry would defeat

3 the purpose of class treatment), Defendants’ use of a particular date to approximate the line

4 between those whose delays resulted from the pending name check versus those whose delays

5 resulted from other reasons is acceptable.

6

The parties agree that the geographic restriction in the class definition — “residing in the

7 Western District of Washington” — means that an applicant was a resident of the Western

8 District of Washington at the time the application was filed, or that the applicant subsequently

9 moved into the Western District of Washington and informed USCIS of his or her change of

10 address. Applicants who filed in the Western District of Washington but who have subsequently

11 moved are not part of the class. The Court accepts this interpretation of the class definition.

12

Finally, Defendants request that the Court exclude any potential class members who are

13 covered by the settlement in Kaplan v. Chertoff, Case No. 06-5304 (E.D. Penn. 2008). (See Dkt.

14 No. 36-2.) That settlement agreement covers naturalization applicants who may lose social

15 security benefits prior to a final decision on their naturalization applications. Although it

16 establishes a process for requesting expedited completion of applications and name checks, the

17 settlement explicitly does not require that either of those processes be completed by a date

18 certain. (Id. ¶ 8.) And those class members cannot make further claims “regarding the pace or

19 extent of security check processing by either USCIS or the FBI.” (Id. ¶ 44.) Because the two

20 classes do not appear to overlap and because Defendants have provided little support for their

21 request to exclude, the request is denied.

22

Conclusion

23

To ensure that all class members are naturalization applicants whose applications have

24 been delayed because of the pendency of an FBI name check, the Court AMENDS its class

25 definition. The amended definition is as follows:

26

27
ORDER — 4

1

All lawful permanent residents of the United States residing in the Western District

of Washington who have submitted naturalization applications to USCIS and (1)

2

whose naturalization applications were not determined within 120 days of the date of

their initial examination, (2) whose name checks remained pending on the 120th day

3

after their initial examination, (3) whose FBI name checks remained pending on

October 29, 2007, and (4) whose naturalization applications were not adjudicated as

4

of April 25, 2008.

5

“[R]esiding in the Western District of Washington” means that an applicant was a

resident of the Western District of Washington at the time the application was filed,

6

or that the applicant subsequently moved into the Western District of Washington and

informed USCIS of his or her change of address. Applicants who filed in the Western

7

District of Washington but who have subsequently moved are not part of the class.

8 The parties are directed to file an amended proposed class notice in light of this amended class

9 definition. The proposed class notice is due no later than June 13, 2008.

10

The clerk is directed to send copies of this order to all counsel of record.

11

Dated: June 3, 2008.

12

13

14

15

A
Marsha J. Pechman United States District Judge

16

17

18

19

20

21

22

23

24

25

26

27
ORDER — 5

 </s> 1

2

3

4

UNITED STATES DISTRICT COURT

5

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

6

7 ROSHANAK ROSHANDEL, VAFA GHAZI-

8

MOGHADDAM, HAWO AHMED, LIN HUANG, AHMAD ALKABRA, MOHAMMAD REZA

9

AIDINEJAD, and ZAHRA ABEDIN, individually and on behalf of all others similarly situated,

10 Plaintiffs,

11 v.

12

MICHAEL CHERTOFF, Secretary, United States 13 Department of Homeland Security, EMILIO

GONZALES, Director, United States Citizenship 14 and Immigration Services, ANN CORSANO,

15

Director, District 20, United States Citizenship and Immigration Services, JULIA HARRISON,

16

Director, Seattle Field Office, United States Citizenship and Immigration Services, ROBERT

17 MUELLER III, Director, Federal Bureau of Investigation, MICHAEL MUKASEY, Attorney

18 General, United States Department of Justice, and the UNITED STATES OF AMERICA,

19

Defendants.

20

Case No. C07-1739MJP
ORDER DENYING GOVERNMENT’S MOTION TO DISMISS AND/OR REMAND

21

22

This matter comes before the Court on the Government’s Motion to Dismiss and/or

23 Remand. (Dkt. No. 9.) Plaintiffs filed a response to the motion (Dkt. No. 13) and Defendants

24 filed a reply (Dkt. No. 17). Having considered the parties’ briefs and all documents submitted in

25 support thereof, and having heard oral argument on the issues, the Court DENIES the

26 Government’s Motion to Dismiss and/or Remand.

27
ORDER — 1

1

Background

2

This action involves delayed naturalization applications allegedly due to a pending “name

3 check” with the Federal Bureau of Investigation (“FBI”). Named Plaintiffs are lawful permanent

4 residents of the United States who have applied with the United States Citizenship and

5 Immigration Services (“USCIS”) to be naturalized as United States citizens. Defendants include

6 officers in USCIS, the FBI, and other related federal agencies. Defendant Michael Chertoff is

7 Secretary of the United States Department of Homeland Security. Emilio Gonzales is Director of

8 USCIS. Ann Corsano is Director of District 20, USCIS, Julia Harrison is Director of the Seattle

9 Field Office, USCIS. Robert Mueller III is Director of the FBI, and Michael Mukasey is Attorney

10 General, United States Department of Justice. Plaintiffs also sue the United States of America.

11

Each Plaintiff’s application has been pending for at least two years since passing his or her

12 naturalization examination. (Dkt. No. 21, First Amended Complaint (“Compl.”) ¶ 2.) Plaintiffs

13 allege that they have met all legal requirements for naturalization. (Id. ¶ 2.) Plaintiffs allege

14 numerous injuries resulting from their delayed naturalization applications, including the inability to

15 participate in civic society by voting and jury service, inability to travel freely as United States

16 citizens, and ineligibility for jobs for which they are otherwise qualified. (Compl. ¶ 67.)

17

On April 25, 2008, the Court certified a class comprised of the following members:

18

All lawful permanent residents of the United States residing in the Western District

of Washington who have submitted naturalization applications to USCIS but

19

whose naturalization applications have not been determined within 120 days of the

date of their initial examination due to the pendency of a “name check.”

20

21 (Dkt. No. 28.)

22 I. The Naturalization Process

23

Persons seeking naturalization must submit an application to USCIS, the agency

24 responsible for adjudicating naturalization applications. See 8 U.S.C. § 1445; 8 C.F.R. § 100.2(a)-

25 (f); 6 U.S.C. § 291 (abolishing the Immigration and Naturalization Service). A naturalization

26 applicant must meet certain requirements under the Immigration and Naturalization Act (“INA”),

27
ORDER — 2

1 including an understanding of the English language and history of the United States, and good

2 moral character. 8 U.S.C §§ 1423, 1427. USCIS is required to grant the application if the

3 applicant meets all statutory requirements for naturalization. 8 C.F.R. § 335.3(a).

4

Once an application is submitted, USCIS conducts an investigation of each naturalization

5 applicant. See 8 U.S.C. § 1446(a); 8 C.F.R. § 335.1. Under USCIS regulations, the investigation

6 includes a “full criminal background check” performed by the FBI. 8 C.F.R. § 335.2(b). USCIS

7 also conducts a naturalization interview, at which an applicant meets with a USCIS officer who

8 asks questions and takes testimony. 8 C.F.R. §§ 335.1, 335.2(a). At the interview, the USCIS

9 officer is required to inform the applicant of the remedies available to the applicant under section

10 1447(b). 8 U.S.C. § 1446(b). Under USCIS regulations, applicants are supposed to be

11 interviewed only after the USCIS has received a “definitive response” from the FBI that a full

12 background check of the applicant is complete. 8 C.F.R. § 335.2(b).1

13

The regulations require that USCIS make a decision to grant or deny the naturalization

14 application either at the initial examination or within 120 days of the date of the initial

15 examination. See 8 C.F.R. § 335.3(a) (“A decision to grant or deny the application shall be made

16 at the time of the initial examination or within 120-days after the date of the initial examination of

17 the applicant for naturalization under § 335.2.”). If USCIS fails to render a decision on a

18 naturalization application within 120 days of the applicant’s naturalization examination, the

19 applicant may seek district court adjudication of his or her application. 8 U.S.C. § 1447(b). The

20 court may either determine the application, or remand the application to the agency with

21

22 1 Until recently, USCIS did not follow this regulation and would conduct interviews before

23 completing the background checks. Apparently, USCIS now waits until background investigations

24

are complete before conducting an applicant’s examination interview. See Stepchuk v. Gonzales, No. C06-570RSL, 2006 WL 3361776, at *5 n.6 (W.D. Wash. Nov. 17, 2006) (Lasnik, C.J.) (noting that,

25 “perhaps in response to the growing number of lawsuits that have resulted from the combination of lengthy background checks and [US]CIS’s deviation from the course of action dictated in its

26 regulation, the agency recently declared its renewed intention to conduct examinations only after

receiving the results of an applicant’s criminal background check”). 27

ORDER — 3

1 instructions. Id. Once a plaintiff has filed a petition under section 1447(b), the district court

2 assumes exclusive jurisdiction over the naturalization application. United States v. Hovsepian, 359

3 F.3d 1144, 1161 (9th Cir. 2004).

4 II. The Name Check Requirement

5

Plaintiffs allege that in 2002, without promulgating any regulations and without statutory

6 authorization, USCIS “dramatically altered the naturalization process by requiring that all

7 applicants pass a ‘name check’ by the FBI before final approval.” (Compl. ¶ 40.) According to

8 the complaint, a name check is a search of FBI records and other records the FBI has access to

9 based on the name of the applicant. (Id.) Plaintiffs allege that the name check is implemented in

10 such a manner that an applicant may be erroneously identified as a “person of interest” to the FBI,

11 thereby delaying adjudication of the naturalization application, even though the applicant has

12 committed no crimes and is not a suspect, and even though the name check revealed no other

13 information bearing on eligibility for naturalization. (Compl. ¶ 50.) Plaintiffs further allege that

14 USCIS will not grant naturalization applications until it receives a completed background check

15 from the FBI, and that neither USCIS nor the FBI has imposed any timeline for completion of the

16 name checks. (Id. ¶ 52.)

17 III. The Class Action Complaint

18

Plaintiffs’ complaint states four causes of action: (1) right to judicial determination of

19 application for naturalization pursuant to 8 U.S.C. § 1447(b); (2) unreasonable delay in violation

20 of the Administrative Procedure Act (“APA”), 8 U.S.C. §§ 555(b); (3) failure to follow notice-

21 and-comment requirements of the APA, 8 U.S.C. § 553; and (4) failure to provide notice of

22 remedies to certain Plaintiffs as required by 8 U.S.C. § 1446(b). Counts One, Three and Four are

23 alleged exclusively against Defendants Chertoff, Gonzalez, Corsano, Harrison, and the United

24 States. Count Two is alleged against all Defendants, including Mukasey, Mueller, and the United

25 States. Under Count One, Plaintiffs ask the Court to remand class members’ naturalization

26 applications to USCIS with instructions to render a decision on each proposed class member’s

27
ORDER — 4

1 naturalization application within 90 days.2 Plaintiffs seek declaratory and injunctive relief for all

2 remaining counts.

3

Discussion

4 I. Plaintiffs’ Motion to Strike

5

As a preliminary matter, Plaintiffs move to strike portions of the Government’s motion to

6 dismiss and attached declarations as outside of the complaint and inadmissible for purposes of a

7 Rule 12(b)(6) motion. Generally on a motion to dismiss, a court cannot consider facts outside the

8 complaint without converting the motion to a motion for summary judgment. See Arpin v. Santa

9 Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001). The Government argues that

10 the declarations should be allowed because they bear on the Court’s subject matter jurisdiction. A

11 defendant may rely on documents outside of the complaint in a 12(b)(1) factual attack on subject

12 matter jurisdiction without converting the motion to dismiss into a motion for summary judgment.

13 See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). However, the Cannon

14 Declaration submitted by the Government does not bear on the issue of subject matter

15 jurisdiction. Rather, this declaration and the Government’s corollary arguments go to the merits

16 of Plaintiffs’ claims, in particular, whether the agency delay in processing name checks is

17 “reasonable.” Because the declarations do not form the basis of a factual attack on the Court’s

18 jurisdiction, they cannot be considered on that basis. To the extent the declarations provide

19 grounds for Defendants to prevail on the merits, they fall outside the scope of the 12(b)(6)

20 arguments and may only be considered in a separate motion for summary judgment.

21

Thus, the Court strikes the following materials: Motion to Dismiss (Dkt. No. 9), Parts

22 III.B.3 & 4 (arguing that delay is reasonable and does not violate the APA), and III.D (arguing

23 that applicants are currently provided notice of remedies); and Declaration of Michael Cannon

24 (Dkt. No. 9-2) ¶¶ 4-40 (describing the name check program).

25

26

2

Although the complaint asks for section 1447(b) relief in the form of either remand

or naturalization, Plaintiffs stated at oral argument that, in terms of class-wide relief, they only seek 27 remand.

ORDER — 5

1 II. The Government’s Motion to Remand

2

After the filing of the original complaint, the FBI completed the name checks for named

3 plaintiffs Roshandel, Ghazi-Moghaddam, Ahmed, and Huang. In its motion, the Government

4 indicates that USCIS is now ready to adjudicate these naturalization applications and asks the

5 Court to remand the Count One section 1447(b) claims of these four named plaintiffs to USCIS

6 for adjudication.

7

However, since the filing of the Government’s motion, Plaintiffs filed an amended

8 complaint adding three more named plaintiffs whose name checks are not yet complete.3 And in a

9 separate order, the Court certified a class under both the APA and section 1447(b), and provided

10 for an opt-out notice for current and future plaintiffs who wish to individually seek remand or

11 court adjudication of their naturalization applications. (Dkt. No. 28.) Given these developments,

12 the Government’s arguments regarding remand are no longer applicable and the remand request is

13 denied.4

14 III. The Government’s Motion to Dismiss

15

The Government moves to dismiss Counts Two, Three, and Four for failure to state a

16 claim upon which relief can be granted.

17 A. Legal Standard

18

A motion to dismiss should be granted only if the complaint fails to set forth facts

19 sufficient to establish grounds for federal subject matter jurisdiction or a plausible right to relief.

20 Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007). The complaint is construed in the

21

22

3

Since oral argument, the Government has requested permission to apprise the Court

of the status of the name checks for the remaining named plaintiffs. (Dkt. No. 25.) Because that

23 request to consider additional material does not ripen until May 9, 2008, the Court has not yet ruled

24 on whether to consider the additional material and so does not consider it here.

25

4

Prior to oral argument, Defendants submitted a Supplemental Motion to Dismiss

and/or Remand (Dkt. No. 22), and the Supplemental Declaration of Susan Walk (Dkt. No. 23) with

26 an attached exhibit discussing the USCIS and FBI plan to eliminate the backlog of name checks. To

the extent the Government suggests that this plan moots Plaintiffs claims, a letter discussing USCIS 27 and the FBI’s plan to eliminate the backlog of name checks does not moot this case.

ORDER — 6

1 light most favorable to the plaintiff and all properly pleaded factual allegations are taken as true.

2 Everest & Jennings, Inc., v. Am. Motorists Ins. Co., 23 F.3d 226, 228 (9th Cir. 1994).

3 B. Unreasonable Delay under the APA

4

Plaintiffs allege that all Defendants have unreasonably delayed the processing of their

5 naturalization applications, in violation of the APA. The APA requires that an agency, “[w]ith

6 due regard for the convenience and necessity of the parties... and within a reasonable time,” shall

7 “conclude a matter presented to it.” 5 U.S.C. § 555(b). The APA authorizes suit by “[a] person

8 suffering legal wrong because of agency action.” 5 U.S.C. § 702. “Agency action” is defined to

9 include “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or

10 denial thereof, or failure to act.” 5 U.S.C. § 551(13) (emphasis added). The APA permits a

11 “reviewing court [to] compel agency action unlawfully withheld or unreasonably delayed.” 5

12 U.S.C.§ 706(1). The district court may also hold unlawful and set aside agency action that is

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

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

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

16 5 U.S.C. § 706(2)(D).

17

Defendants argue that Plaintiffs fail to state a claim in Count Two because: (1) section

18 1447(b) provides an adequate remedy for undue delay in naturalization applications; (2) neither

19 USCIS nor the FBI has a duty to decide applications within a particular time frame; and (3) the

20 delay is reasonable as a matter of law.

21

1. The jurisdiction granted in section 1447(b) of the INA does not preclude the

Court’s review of agency delay under the APA.

22

23

The APA provides a right to judicial review of all “final agency actions for which there is

24 no other adequate remedy in court.” 5 U.S.C. § 704. “When Congress enacted the APA to

25 provide a general authorization for review of agency action in the district courts, it did not intend

26 that general grant of jurisdiction to duplicate the previously established special statutory

27 procedures relating to specific agencies.” Bowen v. Massachusetts, 487 U.S. 879, 903 (1988);
ORDER — 7

1 see also 5 U.S.C. § 704. This exception to judicial review under the APA was intended to avoid

2 duplication and is narrowly construed. Bowen, 487 U.S. at 903; see also Sze v. INS, No. C-97-

3 0569 SC, 1997 WL 446236, at *5 n.3 (N.D. Cal. July 24, 1997) (finding that, consistent with this

4 narrow construction, jurisdiction under the APA is not statutorily precluded by section 1447(b) of

5 the INA).

6

Defendants argue that Plaintiffs’ unreasonable delay claim fails as a matter of law because

7 Plaintiffs already have a remedy for administrative delays under 8 U.S.C. § 1447(b). Plaintiffs

8 respond that relief under section 1447(b) is not adequate because they seek to remedy

9 “institutional” delays in the system, not only the delay for any particular application. Plaintiffs

10 also suggested at oral argument that they should be allowed to move forward on both claims in

11 the alternative.

12

The relief requested by Plaintiffs under the APA is not duplicative of that available to them

13 under section 1447(b). Without the APA, Plaintiffs cannot obtain a declaration of the

14 unlawfulness of the policy and practice of delaying these naturalization applications. Further, 8

15 U.S.C. § 1447(b) does not on its face reach the FBI. Thus, the Court concludes that Plaintiffs’

16 “unreasonable delay” APA claims against both USCIS and the FBI are not duplicative of

17 Plaintiffs’ claims under section 1447(b), and Plaintiffs may proceed with both claims.

18

2. Defendants’ alleged unlawful actions were legally required, and therefore

subject to the Court’s review.

19

20

The “only agency action that can be compelled under the APA is action legally required.”

21 Norton v. So. Utah Wilderness Alliance (“SUWA”), 542 U.S. 55, 63 (2004). “Thus, a claim

22 under 5 U.S.C. § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a

23 discrete agency action that it is required to take.” Id. at 64. The question here is whether USCIS

24 or the FBI has a duty to act in this case.5

25

26

5

The parties dispute whether the Government’s arguments bear on the Court’s

jurisdiction or on whether the Complaint states a claim. Because the Court has already concluded 27 that the Government’s materials do not raise a factual attack on jurisdiction, whether the Court

ORDER — 8

1

i. USCIS has a mandatory duty to act.

2

Defendants argue that USCIS is not under any mandatory duty to act within a particular

3 time frame because 8 U.S.C. § 1447(b) does not establish a deadline for agency action.

4 Defendants ignore the duty to adjudicate and the mandatory time frame set out in USCIS’s

5 regulations. 8 C.F.R. § 316.14(b)(1) provides that “the employee of the Service who conducts

6 the examination under paragraph (a) of this section shall determine whether to grant or deny the

7 application....” (Emphasis added). 8 C.F.R. § 335.3(a) states that a “decision to grant or deny the

8 application shall be made at the time of the initial examination or within 120-days after the date of

9 the initial examination of the application for naturalization.” (Emphasis added). Agency

10 regulations with the force of law can serve as the basis for finding a mandatory duty underlying an

11 APA action. See SUWA, 542 U.S. at 65. The agency’s regulations provide a sufficient basis for

12 alleging that USCIS has a mandatory duty to act within 120 days of the interview. See Zagrebelny

13 v. Frazier, Civil No. 07-1682 (PAM/JSM), 2008 WL 624072, at *5 (D. Minn. March 4, 2008)

14 (concluding that 8 C.F.R. §§ 316.14(b)(1) and 335.3(a) create a nondiscretionary duty on the part

15 of USCIS to adjudicate their naturalization applications within 120 days of the interview).

16

Defendants rely on the district court’s holding in Mustafa v. Pasquerell, No. Civ.SA05CA-

17 658-XR, 2006 WL 488399, at *5 (W.D. Tex. Jan. 10, 2006), in which the court dismissed

18 plaintiff’s APA and mandamus claims, holding that the pace at which adjustment of status

19 applications are processed by USCIS is discretionary. However, Mustafa is inapposite here

20 because adjustment of status petitions are not governed by the time frame set out in 8 C.F.R. §

21 335.3(a). The Government also argues the even if there is a mandatory duty, the 120 days have

22 not yet passed because USCIS interprets “examination” in 8 C.F.R. § 335.3(a) to mean the full

23 background check process, not just the naturalization interview. Under Defendants’

24 interpretation, the 120-day clock does not begin to run until the name check and all other

25

26 analyzes the issue of duty as a question of jurisdiction or in the context of whether the complaint states a claim is immaterial. Under either approach, the legal standard and the result are the same.
27
ORDER — 9

1 background checks are complete. The Court has already rejected this position and will not

2 reconsider it here. See Weir v. Gonzales, No. C07-0074MJP, 2007 WL 1430109, at *2 (W.D.

3 Wash. May 14, 2007) (concluding that the statute and accompanying regulations use the term

4 “examination” to refer to the interview date, not the entire process of conducting the interview

5 and completing the background checks); see also Walji v. Gonzales, 500 F.3d 432, 436 (5th Cir.

6 2007) (“We agree... that a thorough reading of 8 C.F.R. § 335.2 reveals that the regulation can

7 only be understood as equating ‘examination’ with the ‘interview’ conducted by the Service

8 officer.”) (citation and internal quotation marks omitted).

9

Finally, in its reply brief, the Government argues for the first time that the language of 8

10 C.F.R § 335.3(a) is “superseded” by 1997 funding legislation in which Congress mandated that

11 USCIS may not adjudicate a naturalization application until completion of a full criminal

12 background check by the FBI. See Pub. L. No. 105-119, 111 Stat. 2448 at *2449 (Nov. 26,

13 1997) (codified at 8 C.F.R. § 335.2(b)); see also Antonishin v. Keisler, No. 06 CV 2518, 2007

14 WL 2788841, at *5 (N.D. Ill. Sept. 20, 2007) (concluding that USCIS does not have a mandatory

15 duty to adjudicate applications within 120 days because under 8 C.F.R. § 335.2(b), USCIS has no

16 duty to act until it receives a response from the FBI). However, the appropriations bill simply

17 states that funds appropriated to USCIS cannot be used to adjudicate naturalization applications

18 until a “full criminal background check” is completed by the FBI. Defendants cite no legal

19 authority for the suggestion that the agency’s statutory obligation to wait for a “definitive

20 response” from the FBI changes the agency’s regulatory obligation under 8 C.F.R. § 335.3(a) to

21 decide the application within 120 days of the interview. The Court sees no reason to assume that

22 the 1997 funding legislation changed the regulatory landscape in the way Defendants suggest.

23

In sum, the regulations impose a nondiscretionary duty on USCIS to adjudicate

24 naturalization applications within 120 days of the applicant’s interview.

25

ii. The FBI has a mandatory duty to act.

26

The Government argues that the FBI has no mandatory duty to conduct background

27 checks in relation to Plaintiffs’ naturalization applications, let alone complete the background
ORDER — 10

1 checks requested by USCIS within a particular time frame. It is true that no statute or regulation

2 dictates a time frame in which the FBI must complete the name checks. But the APA itself

3 provides the time frame — all agencies subject to the APA must conclude matters presented to

4 them in a “reasonable” amount of time. 5 U.S.C. § 555(b).6 Thus, if there is a mandatory duty to

5 act, the APA prevents the FBI from delaying indefinitely.

6

Moreover, no single statute or regulation, standing alone, expressly imposes a mandatory

7 duty on the FBI to perform background checks. However, legislative intent may be revealed in

8 the plain language of a single enactment, or as is often the case, by examining a legislative scheme

9 as a whole. See Block v. Cmty. Nutrition Inst., 467 U.S. 340, 349 (1984). Thus, an agency’s

10 mandatory duty to act may be expressed from several Congressional enactments which, read

11 together, imply a mandatory duty. This is the approach endorsed in Kaplan v. Chertoff, 481 F.

12 Supp. 2d. 370 (E.D. Pa. 2007), and followed by a number of other district courts that have

13 concluded that the FBI has an implied mandatory duty to complete the name checks in a

14 reasonable amount of time.7

15

16

6

This conclusion is supported by cases in which courts have analyzed whether agency

delay is reasonable under the APA even in the absence of a statutory timetable for agency action. For 17 example, neither Telecomms. Research & Action v. FCC (“TRAC”), 750 F.2d 70, 80 (D.C. Cir.

18 1984), the case articulating the six “TRAC” factors for determining when agency delay is unreasonable, nor any of the cases the court relied on in discerning the factors, involved agency

19 inaction in the face of a mandatory statutory deadline. See also Pub. Citizen Health Research Group

v. Chao, 314 F.3d 143, 152-53 (3rd Cir. 2002) (compelling agency under 5 U.S.C. § 706(1) to 20 proceed with rulemaking although enabling legislation set no specific deadline for agency to do so).

21 These cases instead rely on the “reasonable” time frame imposed by the APA.

22

7

See Moretzapour v. Chertoff, No. C07-4264 BZ, 2007 WL 4287363 , at *1 n.7 (N.D.

Cal. Dec. 5, 2007) (citing Kaplan with approval and “respectfully disagreeing” with cases holding that

23 the FBI does not have a mandatory duty to complete a background check); Zagrebelny, 2008 WL

624072, at *5 n.4 (relying on reasoning in Kaplan to deny motion to dismiss unreasonable delay claim 24 against FBI); Al Daraji v. Monica, No. 07-1749, 2007 WL 2994608, at *3-5 (E.D. Pa. Oct. 12, 2007)

25 (same); Dawoud v. Dep’t of Homeland Sec., No. 3:06-CV-1730-M (BH), 2007 WL 4547863, at *6 (N.D. Tex. Dec. 26, 2007) (same). But see Antonishin, 2007 WL 2788841, at *6-7 (reasoning that

26 the court should not “infer such a duty [for the FBI] based on an appropriations measure directed to

a different agency [, USCIS].”); Shalabi v. Gonzales, No. 4:06CV866 RWS, 2006 WL 3032413, at 27 *5 (E.D. Mo. Oct. 23, 2006) (same).

ORDER — 11

1

In Kaplan, the district court concluded that the FBI had an implied mandatory duty to

2 complete the background checks. The court reasoned that such a duty must follow from the 1997

3 funding legislation and the implementing regulations that injected the FBI into the naturalization

4 process by requiring that the FBI conduct a full criminal background check of a naturalization

5 applicant before the USCIS can complete its adjudication of the application. See Pub. L. No. 105-

6 119, 111 Stat. 2448 (Nov. 26, 1997); see also 8 C.F.R. § 335.2(b). Other regulations require

7 applicants to submit their fees to USCIS; in turn, USCIS provides a portion of the fees to the FBI

8 to complete the fingerprint and name checks. 8 C.F.R § 334.2; see also 72 Fed. Reg. 4888, 4889

9 (proposed Feb. 1, 2007) (proposing increased fees for applicants based, in part, to “costs due to

10 the FBI for background checks”). As the court in Kaplan explained, “where Congress has

11 conditioned [US]CIS’s mandatory action on the FBI’s completion of background checks, and

12 where applicants must pay the FBI, through [US]CIS, to complete the background checks, . . .

13 Congress has, by implication, imposed on the FBI a mandatory duty to complete the background

14 checks.” 481 F. Supp. 2d at 401.

15

The Court agrees with the analysis in Kaplan and concludes that by virtue of its statutory

16 and regulatory role in the naturalization process, the FBI has an implied mandatory duty to

17 process name checks. Other courts’ conclusions to the contrary are not binding on this Court.

18

3. The time required to complete a name check is not per se reasonable.

19

Finally, the Government argues that the delay of USCIS and the FBI in adjudicating

20 Plaintiffs’ applications is reasonable. Not only does this merit-based argument fall outside the

21 scope of this motion, but when measured against the 120-day deadline for USCIS to act, see 8

22 C.F.R. § 335.3(a); 8 U.S.C. § 1447(b), a two to three year deadline cannot be deemed per se

23 reasonable. Ultimately, deciding what constitutes a reasonable time frame to act requires factual

24 analysis. The Government’s arguments and declarations regarding this issue are stricken as

25 outside the scope of this motion. The Court concludes that Plaintiffs have successfully stated

26 claims under the APA against all Defendants for failing to complete the name checks and

27 adjudicate applications in a reasonable amount of time.
ORDER — 12

1 C. Failure to Follow Notice and Comment Requirements of APA

2

Plaintiffs allege in Count Three that Defendants Chertoff, Gonzalez, Corsano, Harrison,

3 and the United States unlawfully failed to follow the notice and comment requirements of the

4 APA when implementing the name check policy. The APA generally requires that agency rules be

5 promulgated after notice to and comment from the public. See 5 U.S.C. § 553. However, unlike

6 “substantive” rules subject to these procedural requirements, “interpretive rules” or “general

7 statements of policy” do not need to undergo notice and comment rulemaking procedures. 5

8 U.S.C. § 553(b)(3)(A). Whether a rule is interpretive or substantive is a legal question, and the

9 distinction between these two categories of rules is not crystal clear. Gunderson v. Hood, 268

10 F.3d 1149, 1155 (9th Cir. 2001). Generally speaking, interpretive rules are defined as “horatory

11 and instructional,” which “merely clarify or explain existing law or regulations.” Alcaraz v.

12 Block, 746 F.2d 593, 614 (9th Cir. 1984). In contrast, a substantive rule is one that modifies

13 existing individual rights and obligations or effects a change in existing law or policy. W.C. v.

14 Bowen, 807 F.2d 1502, 1504 (9th Cir. 1987).

15

Plaintiffs do not attach an actual written “name check” policy to their complaint. Plaintiffs

16 allege that: (1) USCIS will not decide a naturalization application until it receives a completed

17 name check from the FBI (i.e., it is a prerequisite to naturalization); (2) this name check policy is

18 a change in USCIS policy; and (3) USCIS promulgated this change in policy without

19 promulgating any regulations and without explicit statutory authorization.

20

The Government argues that the Court should decide as a matter of law that the policy is

21 interpretive and therefore not subject to the APA’s notice and comment requirements. Although

22 additional facts are contained in the Cannon Declaration, that material is outside the scope of the

23 motion to dismiss and has been stricken. To decide whether the alleged policy is interpretive or

24 substantive, the Court needs the benefit of a more fully developed record. Because the Court

25 cannot decide this issue on the basis of Plaintiffs’ complaint, the Government’s motion to dismiss

26 this claim is denied without prejudice.

27
ORDER — 13

1 D. Failure to Provide Notice of Remedies

2

Plaintiffs allege that Defendants Chertoff, Gonzales, Corsano, Harrison, and the United

3 States failed to give notice of remedies available under section 1447(b) to certain members of the

4 class, including named plaintiffs Roshandel and Ghazi-Moghaddam. Under 8 U.S.C. § 1446(b),

5 the USCIS officer “shall, at the examination, inform the applicant of the remedies available to the

6 applicant under section 1447 of this title.” Plaintiffs ask the Court to declare Defendants’ failure

7 to give this notice unlawful, and to enjoin the unlawful conduct. In their brief, Defendants

8 concede that before January 14, 2005, the form that USCIS provided to applicants at their

9 examination did not contain the required notice of remedies, and that Plaintiffs Roshandel and

10 Ghazi Moghaddam were interviewed prior to that date. (Dkt. No. 9, Mot. to Dismiss at 16.)

11

Defendants argue that even assuming USCIS failed to give notice, the error is harmless

12 because Plaintiffs have not alleged harm resulting from the alleged failure to provide notice. But

13 harm is inherent in the agency’s failure to give notice — an individual who is not aware of his or

14 her remedies simply cannot act on them and may languish indefinitely without recourse.

15 Defendants also allege that Plaintiffs Ahmed and Huang received revised N-652 forms at their

16 interviews, and presumably, notice of their remedies. But the fact that some of the named

17 plaintiffs received this notice does not negate the harm suffered by others who did not. As

18 Plaintiffs make clear in their complaint, only a subclass of Plaintiffs will maintain this claim.

19

Finally, Defendants ask the Court to dismiss this claim because USCIS now complies with

20 the statutory requirements, making declaratory relief unwarranted. (Dkt. No. 10, Walk Decl., Ex.

21 1.) However, whether USCIS did in fact gave these Plaintiffs and future plaintiffs notice of the

22 remedies available to them under section 1446(b) at their interview is a disputed issue of fact that

23 cannot be decided in a motion to dismiss. The fact that USCIS failed to give some Plaintiffs

24 notice of their remedies is sufficient to state a claim for relief under 8 U.S.C. § 1446(b). The

25 Government’s motion to dismiss this claim is denied.

26 E. Injunctive Relief

27

Finally, Defendants argue that Plaintiffs have failed to state a claim for which injunctive

ORDER — 14

1 relief can be granted because “Plaintiffs must establish actual success on the merits, and that the 2 balance of equities favors injunctive relief.” (Dkt. No. 9, Mot. to Dismiss at 18.) The 3 Government erroneously assumes that the Plaintiffs ask for a preliminary injunction. The 4 traditional four-factor test applied when considering appropriateness of permanent injunctive relief 5 requires the prevailing party to demonstrate “(1) that it has suffered an irreparable injury; (2) that 6 remedies available at law... are inadequate to compensate for the injury; (3) that, considering the 7 balance of hardships between the plaintiff and defendant, a remedy of equity is warranted; and (4) 8 that the public interest would not be disserved by a permanent injunction.” eBay Inc., v. 9 MercExchange, L.L.C., 126 S. Ct. 1837, 1839 (2006). The appropriateness of the remedy need 10 not be analyzed by the Court unless and until Plaintiffs prevail. Moreover, the last two elements 11 — balance of hardships and public interest implications — require the benefits of discovery. The 12 Government’s motion to dismiss the claim for injunctive relief is premature and therefore denied. 13 // 14 // 15 // 16 // 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 //
ORDER — 15

1

Conclusion

2

Plaintiffs seek relief from delay in the processing of their naturalization applications. The

3 Government has moved to dismiss and/or remand Plaintiffs’ claims under 8 U.S.C. §§ 1447(b)

4 and 1446(b), and the APA. The Court GRANTS in part Plaintiffs’ motion to strike the following

5 materials as outside the complaint: Motion to Dismiss, Parts III.B.3 & 4 and III.D; and

6 Declaration of Michael Cannon (Dkt. No. 9-2) ¶¶ 4-40. Furthermore, the Court DENIES the

7 Government’s Motion to Remand and DENIES the Government’s Motion to Dismiss.

8 The clerk is directed to send copies of this order to all counsel of record.

9

Dated: May 5, 2008.

10

11

s/ Marsha J. Pechman

12

Marsha J. Pechman

13

United States District Judge

14

15

16

17

18

19

20

21

22

23

24

25

26

27
ORDER — 16

 </s> 1

THE HONORABLE MARSHA J. PECHMAN

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9 ROSHANAK ROSHANDEL, et al., individually and on behalf of all others similarly situated,
10 Plaintiffs,
11 v.
12 MICHAEL CHERTOFF, et al.,
13 Defendants.
14

No. C07-1739 MJP
Note for Motion: June 20, 2008 Without Oral Argument
PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

15

I. INTRODUCTION

16

Defendants have a mandatory duty to adjudicate naturalization applications within 120

17 days of the applicant's interview. Yet defendants admit that hundreds of class members have

18 waited more than 120 days after their interviews for a decision on their naturalization

19 applications due to stalled name checks.

20

When, as here, CIS fails to timely render a decision on a naturalization application, the

21 Court may either determine the matter itself or remand the application back to CIS with

22 appropriate instructions. See 8 U.S.C. § 1447(b). Liability is clear, and plaintiffs now request

23 class-wide relief.

24

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, plaintiffs respectfully

25 request that the Court grant their motion for partial summary judgment on Count I of the

26 Amended Complaint.

PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT - 1 Case No. C07-1739 MJP

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1

II. BACKGROUND

2

Plaintiffs commenced this action on October 29, 2007 (Dkt. No. 1) and filed an Amended

3 Complaint adding three new named plaintiffs on April 8, 2008 (Dkt. No. 21). Plaintiffs seek the

4 following relief in Count I of the Amended Complaint:

5

Because Defendants have unlawfully failed to render a decision on

proposed plaintiff class members’ naturalization applications within 120

6

days after the date of their naturalization examinations . . . this Court

should remand proposed plaintiff class members’ naturalization

7

applications to CIS pursuant to 8 U.S.C. § 1447(b) with instructions to

render a decision on each proposed plaintiff class members’

8

naturalization application within 90 days.

9 Dkt. No. 21 ¶¶ 74, 76.

10

In connection with defendants' motion to dismiss (Dkt. No. 9), defendants filed the

11 Second Declaration of Susan Walk, in which Ms. Walk, Senior Adjudications Office at the

12 Seattle Field Office of the United States Citizenship and Immigration Services ("CIS"), declared:

13

As of [April 10, 2008], USCIS systems indicate that 309 putative class

members have been awaiting adjudication of their applications for

14

naturalization for more than 120 days after an interview due to pending

FBI name checks. Of the 309 individuals, 77 filed their applications

15

more than three years ago, 143 filed their applications between two and

three years ago, and 89 filed their applications less than two years ago.

16 Dkt. No. 23 ¶ 4.

17 This Court subsequently certified a class consisting of:

18

All lawful permanent residents of the United States residing in the

19

Western District of Washington who have submitted naturalization

applications to the USCIS but whose naturalization applications have not

20

been determined within 120 days of the date of their initial examination

due to the pendency of a name check.

21 Dkt. No. 28 at 13.

22 III. ARGUMENT

23

A. Defendants Have A Mandatory Duty To Adjudicate Naturalization

24

Applications Within 120 Days Of The Applicant's Interview.

25

When an agency's regulations set forth a clear mandate, the Court should give effect to

26 meaning "compelled by the regulation's plain language." Thomas Jefferson Univ. v. Shalala, 512

PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT - 2 Case No. C07-1739 MJP

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1 U.S. 504, 512 (1994) (citation omitted). Here, the regulations specify that CIS must render a

2 decision on a naturalization application within 120 days of the date of the applicant's

3 examination:

4

A decision to grant or deny the application shall be made at the time of

the initial examination or within 120-days after the date of the initial

5

examination of the applicant for naturalization under § 335.2.

6 8 C.F.R. § 335.3(a) (emphasis added). See also 8 C.F.R. § 316.14(b)(1) (“the employee of the

7 Service who conducts the examination under paragraph (a) of this section shall determine

8 whether to grant or deny the application” (emphasis added)).

9

In this case, the Court noted that "the regulations impose a nondiscretionary duty on

10 USCIS to adjudicate naturalization applications within 120 days of the applicant’s interview."

11 Dkt. No. 30 at 10. This Court, and numerous others, have reached the same conclusion in other

12 cases. See Zagrebelny v. Frazier, Civil No. 07-1682 (PAM/JSM), 2008 WL 624072, at *5 (D.

13 Minn. March 4, 2008) (CIS has nondiscretionary duty to adjudicate naturalization application

14 within 120 days of applicant's interview). See also Sze v. INS, 153 F.3d 1005, 1008 (9th Cir.

15 1998) ("At the third stage, the applicant is interviewed by an INS officer who will . . . either

16 grant or deny the naturalization application within 120 days of the interview.") (citing 8 C.F.R.

17 § 335.3(a)); Al-Haider v. Mukasey, No. C07-592MJP, 2008 WL 539257, at *4 (W.D. Wash.

18 Feb. 25, 2008); Ali v. Mukasey, No. C07-595MJP, 2008 WL 538974, at *4 (W.D. Wash. Feb.

19 25, 2008); Arutyunov v. Mukasey, No. C07-593MJP, 2008 WL 539262, at *4 (W.D. Wash. Feb.

20 25, 2008); Dang v. Mukasey, No. C07-589MJP, 2008 WL 618637, at *4 (W.D. Wash. Mar. 3,

21 2008); Osman v. Mukasey, No. C07-588MJP, 2008 WL 618635, at *4 (W.D. Wash. Mar. 3,

22 2008); Phompanya v. Mukasey, No. C07-597MJP, 2008 WL 538981, at *4 (W.D. Wash. Feb.

23 25, 2008); Scego v. Mukasey, No. C07-598MJP, 2008 WL 538987, at *4 (W.D. Wash. Feb. 25,

24 2008); Shamdeen v. Mukasey, No. C07-164MJP, 2008 WL 539830, at *4 (W.D. Wash. Feb. 25,

25 2008); Somo v. Gonzales, No. 07cv0637-WQH (NLS), 2007 WL 2700948, at *1 (S.D. Cal. Sept.

26 10, 2007); Khdir v. Gonzales, No. 07-cv-00908-MSK-MEH, 2007 WL 3308001, at *1 (D. Colo.

PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT - 3 Case No. C07-1739 MJP

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1 Nov. 6, 2007); Mohammad v. Keisler, No. 3:07-CV-594-S, 2008 WL 2026089, at *2 (W.D. Ky.

2 May 8, 2008); Lin v. Sec'y, U.S. Dep't of Homeland Sec., 485 F. Supp. 2d 263, 264 (W.D.N.Y.

3 2007); Hussain v. Chertoff, 486 F. Supp. 2d 196, 198 (D. Mass. 2007); Osowa v. Gonzales, No.

4 06-15602, 2007 WL 1101216, at *2 (E.D. Mich. Apr. 5, 2007); Azouaz v. Chertoff, No.

5 4:07CV247SNL, 2007 WL 1876474, at *2 (E.D. Mo. 2007); Bengana v. Chertoff, No.

6 4:07CV247SNL, 2007 WL 1385690, at *2 (E.D. Mo. July 25, 2007); Obanigba v. Chertoff, No.

7 4:07CV1192 RWS, 2008 WL 294332, at *1 (E.D. Mo. Jan. 31, 2008); Hamzehzadeh v. Chertoff,

8 No. 4:06CV1462 RWS, 2007 WL 1629895, at *1 (E.D. Mo. June 4, 2007); Zhao v. Gonzales,

9 No. 4:07-CV-659 (JCH), 2007 WL 2362134, at *2 (E.D. Mo. Apr. 14, 2007); Shalabi v.

10 Gonzales, No. 4:06CV866 RWS, 2006 WL 3032413, at *1 (E. D.Mo. Oct. 23, 2006); Ibrahim v.

11 Chertoff, 529 F. Supp. 2d 611, 613 (E.D.N.C. 2007); Shaat v. Klapakis, No. 06-5625, 2007 WL

12 2768859, at *3 n.4 (E.D. Pa. Sept. 21, 2007); Affaneh v. Hansen, No. C-3-06-267, 2007 WL

13 295474, at *2 (S.D. Ohio Jan. 29, 2007); Manzoor v. Chertoff, 472 F. Supp. 2d 801, 807(E.D.

14 Va. 2007).

15

B. There Is No Dispute That At Least 309 Class Members Have Waited More

Than 120 Days For Adjudication Of Their Naturalization Applications.

16

Defendants admit that, as of April 10, 2008, at least "309 putative class members have

17 been awaiting adjudication of their applications for naturalization for more than 120 days after an

18 interview due to pending FBI name checks."1 Dkt. No. 23 ¶ 4. These class members

19

experienced significant delays. Of the 309 individuals defendants identified, "77 filed their

20

applications more than three years ago, 143 filed their applications between two and three years

21

ago, and 89 filed their applications less than two years ago." Id.

22

23

24

1 There is no dispute that there were at least 309 class members as of April 10, 2008.

25

However, by employing an unduly narrow interpretation of the Court's class definition, defendants' may have understated the number of class members. See Stipulated Motion for

26 Clarification (Dkt. No. 36). Plaintiffs therefore reserve the right to seek an updated count.

PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT - 4 Case No. C07-1739 MJP

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1

It is undisputed that adjudication of hundreds of class members' naturalization

2 applications has been delayed long past the 120 day deadline set forth in the regulations. The

3 reason for the delay is immaterial. The regulations contain no exceptions.

4

Based on defendants' own representations to this Court, liability is clear. The sole

5 remaining question is that of remedy.

6

C. The Court Should Remand The Class Members' Applications With

Instructions To Adjudicate Within 60 Days.

7

When CIS fails to timely render a decision on a naturalization application, the applicant

8 “may apply to the United States district court for the district in which the applicant resides for a

9

hearing on the matter.” 8 U.S.C. § 1447(b). The district court may then either determine the

10

matter itself or remand the application back to CIS with appropriate instructions. 8 U.S.C.

11

§ 1447(b).

12

Plaintiffs respectfully request that the Court remedy the unlawful systemic delays at issue

13

in this case by remanding the class members' naturalization applications to CIS with instructions

14

to adjudicate them within 60 days. The Remand instructions should also make it clear that a

15

pending name check alone is not a ground for defendants to deny a naturalization application.

16

See Answer (Dkt. No. 33) ¶ 52 (admitting that "CIS will not grant naturalization applications

17 until it receives a completed name check from the FBI"). Allowing defendants to deny the class

18

members' applications because name checks remain pending would thwart the very purpose of

19 this lawsuit and leave the class with no remedy for defendants' unlawful conduct.2

20

This is a fair and appropriate remedy for several reasons. First, remand with instructions

21

is specifically authorized under 8 U.S.C. § 1447(b) and has been employed by other judges in

22

23

24

2 Plaintiffs have no objection if, in the alternative, the Court deems it appropriate to retain jurisdiction and determine the class members' naturalization applications through a show cause

25

procedure. See, e.g, Kumar v. Gonzalez, No. C07-1335-MJP, Order to Show Cause (Oct. 16, 2007) ("The Court’s standard practice in naturalization cases like this one is to require

26 Defendants to show cause why Plaintiff should not be naturalized.").

PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT - 5 Case No. C07-1739 MJP

Seattle-3422438.1 0099820-00238

STOEL RIVES LLP
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1 this district.3 See, e.g., Huynh v. Mukasey, No. C07-1344, 2008 WL 1338738 (W.D. Wash.

2 April 7, 2008) (Lasnik, J.) (remanding application for adjudication within 10 days).

3

Second, given the modest size of the class and defendants' own alleged plan to eliminate

4 the backlog in name checks by July 1, 2008 (see Dkt. 25-2 at 10), the proposed 60-day timeline

5 should provide defendants ample time to complete these long-delayed applications.

6

Third, remand with instructions will allow defendants to use existing procedures to

7 complete the class members' applications, albeit on an expedited basis. Similarly, defendants

8 will be able to decide for themselves how to use the allotted time to complete the class members'

9 name checks, if they so choose, and process their applications.

10

Finally, remand with instructions does not require the Court to take any further action

11 with respect to the class members' naturalization applications, unless there is noncompliance

12 with the Court's order. This remedy thus has the benefit of conserving scarce judicial resources.

13

IV. CONCLUSION

14

For the foregoing reasons, plaintiffs respectfully request that the Court grant plaintiffs’

15 motion for partial summary judgment on Count I of the Amended Complaint and remand the

16 class members' naturalization applications to CIS with instructions that they be adjudicated

17 within 60 days.

18

19

20

21

22

23

24

3 Plaintiffs note, also, that defendants did not move to dismiss Count I of the Amended Complaint but instead moved to remand the named plaintiffs' applications to CIS to be

25

adjudicated within 30 days. See Dkt. No. 9 at 5-8, 19. Having asked the Court to remand the named plaintiffs' applications, defendants cannot now complain that remand is an inappropriate

26 remedy for the class.

PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT - 6 Case No. C07-1739 MJP

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1

2

DATED: May 29, 2008.

ROPES & GRAY LLP

3

/s/ Alfred Arthur Day

Alfred Arthur Day, WSBA No. 34926

4

One International Place

Boston, MA 02110

5

617-951-7186 (main)

617-235-9684 (fax)

6

alfred.day@ropesgray.com

7

STOEL RIVES LLP

8

Rita V. Latsinova, WSBA No. 24447 600 University Street, Suite 3600

9

Seattle, WA 98101 206-624-0900 (main)

10

206-386-7500 (fax) rvlatsinova@stoel.com

11

AMERICAN CIVIL LIBERTIES UNION OF

12

WASHINGTON FOUNDATION Sarah A. Dunne, WSBA No. 34869

13

705 Second Avenue, Third Floor Seattle, WA 98104

14

206-624-2184 (main) dunne@aclu-wa.org

15

NORTHWEST IMMIGRANT RIGHTS

16

PROJECT Matthew Adams, WSBA No. 28287

17

Christopher Strawn, WSBA No. 32243 615 Second Avenue, Suite 400

18

Seattle, WA 98104 206-587-4009 (main)

19

matt@nwirp.org chris@nwirp.org

20

Attorneys for Plaintiffs

21

22

23

24

25

26

PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT - 7 Case No. C07-1739 MJP

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1

CERTIFICATE OF SERVICE

2

I hereby certify that on May 29, 2008 I electronically filed the foregoing document with

3 the Clerk of the Court using the CM/ECF system, which will send notification of such filing to

4 the following:

5 Christopher Strawn chris@nwirp.org
6 Counsel for Plaintiffs Matt Adams
7 matt@nwirp.org Counsel for Plaintiffs
8 Sarah A. Dunne dunne@aclu-wa.org
9 Counsel for Plaintiffs Rita V. Latsinova, WSBA No. 24447
10 rvlatsinova@stoel.com Counsel for Plaintiffs
11

Rebecca S. Cohen rebecca.cohen@usdoj.gov Counsel for Defendants Nancy Safavi Nancy.Safavi@usdoj.gov Counsel for Defendants
Aaron H. Caplan caplan@aclu-wa.org Counsel for Plaintiffs

12 ROPES & GRAY LLP

13 /s/ Alfred Arthur Day

14

Alfred Arthur Day, WSBA No. 34926

One International Place

15

Boston, MA 02110

617-951-7186 (main)

16

617-235-9684 (fax)

alfred.day@ropesgray.com

17 Attorneys for Plaintiffs

18

19

20

21

22

23

24

25

26

PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT - 8 Case No. C07-1739 MJP

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 </s> UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON

-- --- - - - - - - - - - ---- - - -X ROSHANAK ROSHANDEL, et al.,

No. C07-1739

Plaintiffs,

-against-

MICHAEL CHERTOFF, et al.,

Defendants.

- - -- - -- --- - - - --- - - ---X

SETTLEMENT AGREEMENT AND RELEASE

Plaintiffs in the above-captioned matter, on behalf of themselves, the Plaintiff Class, and

all Class Members (collectively "Named Plaintiffs" or the "Class"), and Defendants Michael

Chertoff, in his official capacity as Secretary of the Department of Homeland Security; Jonathan

Scharfen, in his official capacity as Acting Director of USCIS; Anne Corsano, in her official

capacity as District Director of the Seattle District of USCIS; Julia Harrison, in her official

capacity as Field Office Director for the Seattle Field Office ofUSCIS; Michael B. Mukasey, in

his official capacity as Attorney General of the United States; and Robert Mueller III, in his

official capacity as Director of the Federal Bureau of Investigation (collectively "Defendants" or

the "Government"), by and through their attorneys, hereby enter into this Settlement Agreement

and Release (the "Agreement"), as of the date it is executed by all parties hereto and effective

upon approval ofthe Court pursuant to Rule 23 of the Federal Rules of Civil Procedure.

WHEREAS:

A. On October 29, 2007, Named Plaintiffs commenced a civil action against

Defendants on behalf of themselves and all others similarly situated captioned Roshandel, et al.,

v. Chertoff, et al., United States District Court for the Western District of Washington Case No.

11250711_1.DOC

C07-1739 (the "Action"), and sought class certification, designation of Class Counsel and declaratory and injunctive relief.
B. The Court certified the proposed class and appointed Class Counsel on April 25, 2008, and clarified the class definition on June 3, 2008. The Court also ordered Class Counsel to provide the Class with notice of the Action and an opportunity to opt-out. Court-approved notice was mailed to the Class on July 1 and 2, 2008.
C. By Order dated May 5, 2008, the Court denied Defendants' Motion to Dismiss and/or Remand.
D. On May 29, 2008, Named Plaintiffs filed a motion for partial summary judgment which was noted for consideration on August 8, 2008 and remains pending.
E. Defendants deny all liability with respect to the Action, deny that they have engaged in any wrongdoing, deny the allegations in both the Complaint and the First Amended Complaint, deny that they committed any violation of law, deny that they acted improperly in any way, and deny liability of any kind to the Named Plaintiffs, the Class, or the Class Members, but have agreed to the settlement and dismissal of the Action with prejudice in order to: (i) avoid the substantial expense, inconvenience, and distraction of protracted litigation; and (ii) finally put to rest and terminate the Action and any and all Settled Claims as defined in Paragraph 7.
F. In a Court-approved mediation on July 21, 2008 before the Hon. Brian Tsuchida, United States Magistrate Judge, the parties conducted discussions and arm's length negotiations with respect to a compromise and settlement of the Action with a view to settling all matters in dispute. Among other things, the parties have agreed to a timeline for adjudicating the remaining Class Members' naturalization applications and scheduling eligible Class Members for oath
2

ceremonies that will allow enough time for the majority of Class Members who are naturalized

to register to vote in the November elections.

G. After considering the benefits that the Named Plaintiffs, the Class, and the Class

Members will receive from settlement of the Action and the risks of litigation, Class Counsel

have concluded that the terms and conditions of this Agreement are fair, reasonable, and in the

best interests of the Named Plaintiffs, the Class, and the Class Members; have agreed that

Defendants shall be released from the Settled Claims pursuant to the terms and provisions of this

Agreement; and have agreed to the dismissal with prejudice of all Settled Claims as defined in

Paragraph 7.

H. As of July 21, 2008, USCIS determined that there were 371 Class Members, 283

of which were considered ready to be adjudicated upon order of remand. The relief contained in

this Agreement is intended to provide complete relief to these Class Members.

NOW, THEREFORE, it is hereby STIPULATED AND AGREED, by and among the

parties to this Agreement, through their respective attorneys, subject to the approval of the Court

pursuant to Rule 23 (e) of the Federal Rules of Civil Procedure, in consideration of the benefits

flowing to the parties hereto from the Agreement, that the Settled Claims shall be compromised,

settled, forever released, barred, and dismissed with prejudice, upon and subject to the following

terms and conditions:

I.

DEFINITIONS:

Wherever used in this Agreement, the following terms have the meanings set forth below:

1.

"Action" means the civil action captioned Roshandel, et al., v. Chertoff, et al.,

United States District Court for the Western District ofWashington Case No. C07-1739. "Class"

means the Plaintiff Class certified in the Action on April 25, 2008, as clarified on June 3, 2008,

11250711_1.DOC

3

pursuant to Rule 23 ofthe Federal Rules of Civil Procedure, comprised of"Alllawful permanent

residents ofthe United States residing in the Western District ofWashington who have submitted

naturalization applications to USCIS and (1) whose naturalization applications were not

determined within 120 days of the date of their initial examination, (2) whose name checks

remained pending on the 120th day after their initial examination, (3) whose FBI name checks

remained pending on October 29, 2007, and (4) whose naturalization applications were not

adjudicated as of April 25, 2008." For the purpose of this Agreement, the word "examination"

means the initial interview by USCIS. Further, "residing in the Western District of Washington"

means that an applicant was a resident of the Western District of Washington at the time the

application was filed, or that the applicant subsequently moved into the Western District of

Washington and informed USCIS of his or her change of address. Applicants who filed in the

Western District ofWashington, but who have subsequently moved, are not part of the Class.

2.

"Class Member" means any person included in the Class. This does not

include anyone who has opted-out, is deceased, or has received a separate remand order from

another Court.

3.

"Effective Date of Settlement" or "Effective Date" means the date upon which

this Agreement shall become effective, as set forth in Section VI below.

4.

"Plaintiff(s)" or "Named Plaintiff(s)" means Roshanak Roshandel, Vafa Ghazi-

Moghaddam, Hawo Ahmed, Lin Huang, Ahmad Alkabra, Mohammad Reza Aidinejad, and

Zahra Abedin.

5.

"Plaintiffs' Counsel" or "Class Counsel" means Alfred A. Day of Ropes &

Gray LLP; Rita V. Latsinova of Stoel Rives LLP; Sarah Dunne of the American Civil Liberties

Union of Washington; and Matt Adams and Chris Strawn of the Northwest Immigrant Rights

4

Project. Should these entities change their names or merge with other entities, those new entities

shall also qualify as Class Counsel.

6.

“Released Parties” means any and all of the Defendants, their predecessors and

successors, their departments and agencies, and their past or present agents, employees, and

contractors.

7.

“Settled Claims” means any and all actions, in law or equity, that were asserted

or that could have been asserted by Plaintiffs or Class Members or anyone acting on behalf of or

in place of a Class Member, based upon the facts alleged or that could have been alleged in the

Amended Complaint relating to the subject of this action, including but not limited to claims

under the Administrative Procedure Act ("APA"), including claims concerning APA notice and

comment procedures, claims under 8 U.S.C §§ 1446, 1447, and any claims involving USCIS’

jurisdiction and authority to adjudicate naturalization applications. PROVIDED, HOWEVER,

that any individual Class Member's claims under 8 U.S.C. § 1421(c) are specifically excepted

from the Settled Claims.

8.

“Settlement” means the settlement provided for in this Agreement.

II. RELEASE: SCOPE AND EFFECT OF RELEASE

9.

On the Effective Date, the Named Plaintiffs, the Class, and the Class Members,

on behalf of themselves, their heirs, executors, administrators, representatives, attorneys,

successors, assigns, agents, affiliates, and partners, and any persons they represent (“Releasing

Parties”), by operation of any final judgment entered by the Court, shall have fully, finally, and

forever released, relinquished, and discharged the Released Parties of and from any and all of the

Settled Claims, and the Releasing Parties shall forever be barred and enjoined from bringing or

prosecuting any Settled Claim against any of the Released Parties.

11242648_1.DOC

5

10.

This Agreement is subject to and contingent upon Court approval pursuant to

Rule 23(e) ofthe Federal Rules of Civil Procedure.

III. PROCESSING OF CLASS MEMBERS' APPLICATIONS

In consideration of the releases contained herein and subject to this Agreement's

conditions, USCIS will institute procedures for the processing of all current Class Members'

applications for naturalization during the existence of this Agreement, as set forth below:

A. General Processing

11.

Simultaneously with the filing of this Agreement with the Court, the parties

shall file, attached as Exhibit A to this Agreement, a joint motion to remand the Class Members'

naturalization applications to USCIS with instructions, as follows:

a.

USCIS shall adjudicate a minimum of 283 naturalization

applications from the Class and schedule those individuals who are eligible to be naturalized

from this group of283 Class Members for an oath ceremony on or before September 19, 2008;

b.

USCIS shall have until October 18, 2008 to adjudicate the

remaining Class Members' naturalization applications and schedule those individuals who are

eligible to be naturalized for an oath ceremony on or before October 18, 2008; and

c.

That the remand is void in the event that the Court does not

approve this Agreement.

12.

Subject to the procedures set forth in Section IV, USCIS shall adjudicate a

minimum of 283 naturalization applications from the Class and schedule those individuals who

are eligible to be naturalized from this group of 283 Class Members for an oath ceremony on or

before September 19, 2008. If additional Class Members decide to opt-out of the Class, the

number of individuals who opt-out after July 21, 2008 shall be subtracted from the total number

of applications that must be adjudicated by September 19,2008. The last day for Class Members

6

to opt-out is the date of the fairness hearing which is currently scheduled for Thursday, August

28, 2008 at 1:30 p.m.

13.

USCIS shall send Class Counsel a letter on September 19, 2008, informing

Class Counsel of the total number of applications adjudicated and the total number of Class

Members naturalized pursuant to Paragraph 12. Defendants shall also copy Class Counsel on

any notices sent to Class Members, including without limitation denial notices and notices of

oath ceremony.

14.

Subject to the procedures set forth in Section IV, USCIS shall have until

October 18, 2008 to adjudicate the remaining Class Members' naturalization applications and

schedule those individuals who are eligible to be naturalized for an oath ceremony on or before

October 18,2008.

15.

On October 18, 2008, USCIS will send Class Counsel a letter informing Class

Counsel of the total number of applications adjudicated and the total number of Class Members

naturalized pursuant to Paragraph 14, as well as the number of applications remaining to be

adjudicated, if any. Defendants shall also copy Class Counsel on any notices sent to Class

Members, including without limitation denial notices and notices of oath ceremony.

16.

The parties agree that should the Court not approve the Settlement Agreement,

the parties are not bound by the remand order or this Agreement. Likewise, if the remand order

is not approved, the parties agree that this Agreement is void.

IV. DISPUTE RESOLUTION PROCEDURES; CONTINUING JURISDICTION

17.

The Court shall retain continuing jurisdiction to supervise the implementation

of this Agreement and to enforce its terms, and the terms of this Agreement shall be incorporated

into the Order of the Court approving the Agreement.

11250711_l.DOC

7

18.

If USCIS has not adjudicated a minimum of 283 Class Members’

naturalization applications and scheduled those individuals who are eligible to be naturalized for

an oath ceremony on or before September 19, 2008 in accordance with Paragraph 12, the parties

will meet and confer on September 21, 2008 via teleconference.

a.

If a meet and confer on September 21, 2008 is necessary and the

parties are not able to resolve any disputes that may exist, Class Counsel will inform Defendants’

Counsel on or before September 30, 2008 whether they will seek relief from the Court.

b.

The Court shall hear, mediate, and, to the fullest extent possible,

obtain the agreement of all parties to resolve any dispute.

19.

Should USCIS be unable to adjudicate the remainder of applications as set

forth in Paragraph 14, the parties agree to meet and confer before October 28, 2008 via

teleconference.

a.

Should the parties not reach a resolution on the matter, the parties

agree to mediation before the Hon. Brian Tsuchida, United States Magistrate Judge, on Tuesday,

October 28, 2008.

b.

Should the parties not reach resolution at mediation, Defendants

shall inform the Court within ten (10) days of the mediation as to why Defendants have not

adjudicated the remainder of the Class Members’ naturalization applications by October 18,

2008. Defendants may, provided notice is given to Class Counsel, choose to go before the Court

ex parte, in camera as to why the naturalization applications were not adjudicated by October 18,

2008.

c.

Class Members may seek sanctions and/or contempt of court

against Defendants only after exhausting the dispute resolution procedures detailed in Paragraphs

8

18 and 19 and only upon a determination by the Court that Defendants failed to show good cause

for their inability to meet their obligations under this Agreement. For the purposes of

determining whether Class Members may seek sanctions and/or contempt of court only, good

cause is demonstrated by showing (1) that the applicant is subject to an ongoing investigation

concerning public safety, criminal activities, fraud or national security; or (2) circumstances

beyond Defendants' control, including (a) force majeure or (b) any individual Class Member's

failure, after receiving notice, to comply with lawful requests for information or failure, after

receiving notice, to appear for any lawfully required appointment, hearing, or ceremony in

connection with the naturalization process.

20.

The parties agree that the Court will not be asked to exercise jurisdiction to

supervise the implementation of this Agreement or to enforce its terms until the dispute

resolution processes set forth in Paragraphs 18 and 19 are exhausted.

21.

The parties agree that any mediation pursuant to Paragraph 19(b) shall be

conducted confidentially and no public disclosure shall be made relating to any dispute before,

during, or after the mediation. All documents and information disclosed by either party during

the mediation process shall be governed by Rule 408 of the Federal Rules of Evidence and shall

not be admissible in any judicial proceeding. All statements or conclusions of the mediator shall

not be admissible in any subsequent judicial proceeding.

22.

The parties agree that any action or proceeding arising out of or in any way

relating to this Agreement, including without limitation any proceeding to enforce the terms of

this Agreement or show cause proceeding contemplated by this Section, shall be brought

exclusively in the United States District Court for the Western District of Washington at Seattle,

the Hon. Marsha J. Pechman presiding.

11250711_l.DOC

9

V. TERMS OF ORDER FOR NOTICE, HEARING AND FINAL JUDGMENT

23.

Concurrently with their filing of this Agreement, Class Counsel and

Defendants' Counsel shall jointly apply to the Court for Preliminary Approval of the Settlement

provided for in this Agreement and entry of a Preliminary Approval Order. Such Preliminary

Approval will seek approval of a Notice to the Class substantially in the form appended hereto as

Exhibit B, as well as a finding that the following satisfies the publication requirements of Fed. R.

Civ. P. 23: Within five (5) business days ofthe date ofthe Preliminary Approval, Class Counsel

shall mail individual notice to the Class.

24. If the Settlement contemplated by this Agreement is approved by the Court,

counsel for the parties shall request that the Court enter a Final Order Approving Settlement

substantially in the form appended hereto as Exhibit C.

25. Within 60 days following the Court's entry of the Final Order Approving

Settlement, Class Counsel will publish a Notice ofFinal Settlement. The language of the Notice

of Final Settlement will be agreed upon by the parties and will constitute updated notice to the

Class.

VI. EFFECTIVE DATE OF SETTLEMENT; TERMINATION

26. The Effective Date of this Agreement shall be the date when all of the following

shall have occurred: (a) entry of the Preliminary Approval Order; (b) approval by the Court of

this Agreement, following notice to the Class and a fairness hearing, as prescribed by Rule 23 of

the Federal Rules of Civil Procedure; and (c) entry by the Court of the Final Order Approving

Settlement, in all material respects in the form appended hereto as Exhibit C.

10

27. In the event that the Court's approval of the Agreement or the Final Judgment is reversed, vacated, or terminated on appeal, the parties' good-faith adherence to the terms of this Agreement prior to said reversal, vacatur, or termination shall not be considered unlawful.
28. Defendants' Counsel or Class Counsel shall have the right to terminate the Settlement and this Agreement by providing written notice of their election to do so ("Termination Notice") to all other parties hereto within thirty (30) days of (a) the Court declining to enter the Preliminary Approval Order or modifying that Preliminary Approval Order in any material respect; (b) the Court declining to approve the Settlement embodied in this Agreement or any material part of it; (c) the Court declining to enter the Final Order Approving Settlement or modifying the Final Order Approving Settlement in any material respect; or (d) the Court of Appeals or the United States Supreme Court's reversing, vacating, or modifying in any material way the Final Order Approving Settlement.
29. Except as otherwise provided herein, in the event that the Settlement is terminated or modified in any material respect or fails to become effective for any reason, then the Settlement shall be without prejudice and none of its terms shall be effective or enforceable; the parties to this Agreement shall be deemed to have reverted to their respective status in the Action as of the date and time immediately prior to the execution of this Agreement; and except as otherwise expressly provided, the parties shall proceed in all respects as if this Agreement and any related orders had not been entered. In the event the Settlement is terminated or modified in any material respect, Defendants shall be deemed not to have waived, modified, or be estopped from asserting any additional defenses available to them.

11250711 !.DOC

11

VII. TERMINATION OF OBLIGATIONS

30. Unless earlier terminated by operation of Section VI, the obligations of this

Agreement shall terminate upon adjudication of all Class Members' naturalization applications or

upon order of the Court terminating this Agreement.

IX. NO ADMISSION OF WRONGDOING

31. This Agreement, whether or not executed, and any proceedings taken pursuant to

it:

a.

shall not be construed to waive, reduce, or otherwise diminish the

authority of the Defendants to enforce the laws of the United States against Class Members,

consistent with the Constitution and laws of the United States, and applicable regulations;

b.

shall not be offered or received against the Defendants as evidence

of, or construed as or deemed to be evidence of, any presumption, concession, or admission by

any of the Defendants of the truth of any fact alleged by Plaintiffs or Class Members, or the

validity of any claim that had been or could have been asserted in the Action or in any litigation,

or the deficiency of any defense that has been or could have been asserted in the Action, or of

any liability, negligence, fault, or wrongdoing of the Defendants; or any admission by the

Defendants of any violations of, or failure to comply with, the Constitution, laws or regulations;

and

c. shall not be offered or received against the Defendants as evidence of a

presumption, concession, or admission of any liability, negligence, fault, or wrongdoing, or in

any way referred to for any other reason as against any of the parties to this Agreement, in any

other civil, criminal, or administrative action or proceeding, other than such proceedings as may

be necessary to effectuate the provisions of this Agreement; provided, however, that if this

12

Agreement is approved by the Court, Defendants may refer to it and rely upon it to effectuate the liability protection granted them hereunder.
X. ATTORNEYS' FEES 32. Within 90 days of the Effective Date of this Agreement, and in no event later than December 31, 2008, Defendants will deliver to Class Counsel the sum of $185,000, in full settlement of all claims for attorneys' fees and costs that could have been or will be claimed in the Action. Ofthe $185,000, the sum of$14,000 shall be for costs. Class Counsel shall bear any costs incurred in connection with notifying the Class of the terms and conditions of this Agreement.
XI. ADDITIONAL PROVISIONS 33. This Agreement, and the obligations incurred herein, shall be in full and final disposition of the Action with prejudice, including any and all Settled Claims against Defendants. On the Effective Date, Plaintiffs and all Class Members shall be deemed to have fully, finally, and forever released, relinquished, and discharged the Defendants of and from any and all Settled Claims, subject to the provisions ofParagraph 7. 34. All of the exhibits attached hereto are hereby incorporated by reference as though fully set forth herein. 35. This Agreement may not be modified or amended, nor may any of its provisions be waived except by a writing signed by all parties hereto or their successors-in-interest. 36. The waiver by one party of any breach of this Agreement by any other party shall not be deemed a waiver of any other prior or subsequent breach of this Agreement. 37. This Agreement and its exhibits constitute the entire agreement among the parties hereto concerning the Settlement of the Action, and no representations, warranties, or

11250711_1.DOC

13

inducements have been made by any party hereto other than those contained and memorialized in such documents.
38. This Agreement may be executed in one or more counterparts. All executed counterparts and each of them shall be deemed to be one and the same instrument provided that counsel for the parties to this Agreement shall exchange among themselves original signed counterparts.
39. This Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the parties hereto.
40. This Agreement shall not be construed more strictly against one party than another merely by virtue of the fact that it, or any part of it, may have been prepared by counsel for one of the parties, it being recognized by the parties that this Agreement is the result of arm's length negotiations between the parties and that all parties have contributed substantially and materially to the preparation of this Agreement.
41. All Counsel and any other person executing this Agreement and any of the exhibits hereto, or any related settlement documents, warrant and represent that they have the full authority to do so and that they have the authority to take appropriate action required or permitted to be taken pursuant to the Agreement to effectuate its terms.
42. Class Counsel and Defendants' Counsel agree to cooperate fully with one another in seeking Court approval of this Agreement and to promptly agree upon and execute all such
other documentation as may be reasonably required to obtain final approval by the Court of the Settlement. EXECUTED this _11th_ day of August, 2008.
14

For and on behalf of Defendants:

For and on behalf of the Class:

GREGORY G. KATSAS

Assistant Attorney General

Civil Division, Department of Justice

DAVID J. KLINE

Director, Office of Immigration Litigation,

District Court Section

ELIZABETH J. STEVENS

Ass~-~t~nt
v-/ifl7/~

D . i ~·/'r~ , ..,./-

,

Co itionallu&H,....,f++...r.
Trial Atto ey District o Section Office Immigration Litigation Civil Division United States Department of Justice P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 202-514-9875 (main) 202-616-8962 (fax) Nancy.Safavi@usdoj.gov

ALFRED A. DAY, WSBA No. 34926 One International Place Boston, MA 02110 617-951-7186 (main) 617-235-9684 (fax) alfred.day@ropesgray .com

STOEL RIVES LLP
RITA V. LATSINOVA, WSBA No. 24447 600 University Street, Suite 3600 · Seattle, WA 98101 206-624-0900 (main) 206-386-7500 (fax) rvlatsinova@stoel.com

AMERICAN CIVIL LIBERTIES UNION

OF WASHINGTON FOUNDATION

SARAH A. DUNNE, WSBA No. 34869

705 Second Avenue, Third Floor

·

Seattle, WA 98104

206-624-2184 (main)

dunne@aclu-wa.org

Attorneys for Defendants
JEFFREY C. SULLIVAN UNITED STATES ATTORNEY REBECCA S. COHEN, WSBA No. 31767 Assistant United States Attorney U.S. Attorney's Office Western District ofWashington 700 Stewart Street, Suite 5220 Seattle, Washington 98101 206-553-6526 Rebecca. Cohen@usdoj.

NORTHWEST IMMIGRANT RIGHTS PROJECT MATTHEW ADAMS, WSBA No. 28287 CHRISTOPHER STRAWN, WSBA No. 32243 615 Second Avenue, Suite 400 Seattle, WA 98104 206-587-4009 (main) matt@nwirp.org chris@nwirp.org
Attorneys for Plaintiffs

Local Counsel for Defendants

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11250711_1.DOC

15

NOTICE OF PROPOSED SETTLEMENT AND HEARING IN CLASS ACTION FOR NON-CITIZENS WHO HAVE NOT RECEIVED A DETERMINATION ON THEIR NATURALIZATION APPLICATION
AFTER 120 DAYS FROM THEIR INITIAL INTERVIEW
ROSHANDEL, ET AL. v. CHERTOFF, ET AL., Case No. C07-1739 IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
The court authorized this notice. This is not a solicitation from a lawyer.
TO: All lawful permanent residents of the United States residing in the Western District of Washington who have submitted naturalization applications to USCIS and (1) whose naturalization applications were not determined within 120 days of the date of their initial examination, (2) whose name checks remained pending on the 120th day after their initial examination, (3) whose FBI name checks remained pending on October 29, 2007, and (4) whose naturalization applications were not adjudicated as of April 25, 2008.
“Residing in the Western District of Washington” means that an applicant was a resident of the Western District of Washington at the time the application was filed, or that the applicant subsequently moved into the Western District of Washington and informed USCIS of his or her change of address. Applicants who filed in the Western District of Washington but who have subsequently moved are not part of the class.
Purpose of This Notice
This notice has three purposes: 1) to tell you about the proposed settlement and fairness hearing; 2) to tell you how to obtain more information, including a full copy of the proposed settlement agreement; and 3) to explain how you may object to the proposed settlement.
Background
This class action lawsuit was filed on October 29, 2007, to challenge alleged delays by the Government in adjudicating applications for naturalization (“Form N-400”) caused by pending FBI name checks. The parties have reached a proposed settlement that the Court has preliminarily approved.
Description of Proposed Settlement Agreement
The following description is a summary of the key points in the proposed settlement agreement. Information on obtaining a copy of the full, proposed agreement is provided after this summary.
(1) USCIS agrees to adjudicate the naturalization applications for approximately 82% of the class members and schedule eligible class members

11242520_1.DOC

1

from this group for oath ceremonies on or before September 19, 2008. Eligible class members from this group will be naturalized in plenty of time to allow the individual to register to vote in the 2008 Presidential election by mail. The parties further agree to meet and confer and, if unable to reach a voluntary agreement, seek relief from the Court with respect to any class members from this group whose naturalization applications remain pending on September 19, 2008.
(2) USCIS also agrees to adjudicate the remaining class members' naturalization applications and schedule eligible class members from this group for oath ceremonies on or before October 18, 2008. Eligible class members from this group will be naturalized in time to allow the individual to register to vote in person for the 2008 Presidential election. The parties agree to meet and confer, mediate, and, if unable to reach a voluntary agreement, seek relief from the Court with respect to any class members whose applications remain pending as of October 18, 2008.
(3) In exchange, the class members release Defendants from all “Settled Claims" as defined in Paragraph 7 of the settlement agreement. This means that class members will not be able to sue Defendants for any delay they experienced in the processing of their naturalization applications. Class members will, however, be able to challenge any denial of their naturalization application. For a complete description of the releases and “Settled Claims,” you should obtain a full copy of the proposed settlement agreement.
(4) Defendants do not admit any wrongdoing, fault, or liability. The settlement agreement cannot be used against Defendants as evidence of any wrongdoing, fault, or liability in future actions.
(5) Finally, Defendants agree to pay class counsel $185,000 in attorneys’ fees and costs incurred in connection with this case.
THIS IS A SUMMARY OF THE PROPOSED AGREEMENT. TO UNDERSTAND IT FULLY, YOU SHOULD READ THE ENTIRE AGREEMENT. Copies of the proposed settlement may be obtained from: 1) The ACLU website (www.aclu-wa.org), and 2) the NWIRP website (www.nwirp.org).
Fairness Hearing
You are hereby notified that a fairness hearing is scheduled for August 28, 2008, at 1:30 p.m., before the Honorable Marsha J. Pechman of the United States District Court for the Western District of Washington, U.S. Courthouse, 700 Stewart Street, Seattle, WA 98101. At the fairness hearing, the Court will consider the proposed settlement of the claims that were brought on your behalf in this lawsuit and any objections to the settlement. You are not required to attend the fairness hearing, but you may attend if you would like.

11242520_1.DOC

2

Deadline to Opt Out of the Class
You previously received a notice about your right to opt-out of the class. The deadline to opt-out of the class is August 28, 2008. If you wish to opt-out, you must do so before August 28, 2008, and your opt-out request must be postmarked by that date. If you do not opt-out, you will be bound by any settlement or order of the Court in this case.
Procedures for Agreement or Objection:
IF YOU AGREE with the proposed settlement, you do not need to do anything at this time.
IF YOU DISAGREE with the proposed settlement, you have a right to object to it and to the dismissal of the claims in the lawsuit. Your objections will be considered by the Court ONLY IF you follow these procedures:
1. Objections must be in writing and must be sent by mail to the Clerk of the United States District Court for the Western District of Washington, U.S. Courthouse, 700 Stewart Street, Seattle, WA 98101, ALL OBJECTIONS MUST CONTAIN THE FOLLOWING INFORMATION:
a. A reference to "Roshandel v. Chertoff, Case No. C07-1739".
b. The name, address, and telephone number of the person filing the objection.
c. A statement of the reasons for the objection.
d. A statement that copies of the objections have also been sent to the attorneys listed at the end of this notice.
2. You must send copies of your objections to all attorneys listed at the end of this notice.
3. The deadline for filing objections and mailing them to the attorneys listed below is August 25, 2008. If Objections are filed by mail, they must be postmarked on or before August 25, 2008 to be considered timely. Objections mailed after that date will not be considered. Class members who do not file objections on or before August 25, 2008 will not be permitted to oppose the proposed settlement at the fairness hearing.
4. No later than August 27, 2008, the attorneys for the class and Defendants shall file and serve responses, if any, to objections they timely receive from persons opposed to the proposed settlement.

11242520_1.DOC

3

Attorneys’ Names and Addresses:

For the Plaintiffs: Rita Latsinova Stoel Rives LLP 600 University St., Suit 3600 Seattle, WA 98101

For the Defendants: Nancy N. Safavi Office of Immigration Litigation Civil Division P.O. Box 868 Ben Franklin Station Washington, DC 20044

11242520_1.DOC

4

 </s> Case 2:07-cv-01739-MJP Document 81 Filed 08/25/08 Page 1 of 3 Case 2:07-cv-01739-MJP Document 78-2 Filed 08/13/2008 Page 18 of 29

I

Hon. Marsha J. Pechman

2

3

111111111111/lllllfllllfllllllltiiiii-IJIHill- -----

4

lllllll/llll/1111111111111111111111

5

07-CV-01739-0RD

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

9

ROSHANAK ROSHANDEL, et al., 10
Plaintiffs, , II

No. C07-1739-MJP.

V,
12 MICHAEL CHERTOFF, Secretary, United States

[PR~ED] ORDER GRANTING CLASS-WIDE REMAND

13 Department of Homeland Security, eta!.,

14

Defendants.

1511---------------------------~

ORDER 16
Having granted the parties' joint motion to preliminarily approve a settlement of the above17 18 captioned case, and• after a duly noticed fairness hearing held on August 25, 200'8, IS HEREBY
ORDERED THAT pursuant to 8 U.S.C. § 1447(b), USCIS shall: 19
(1) adjudicate a minimum of 283 naturalization applications from the Class &nd 20
schedule those individuals who are eligible to be naturalized from this group of 283 21
Class Members for an oath ceremony on or before September 19, 2008;1 and 22
(2) USCIS shall have until October 18, 2008 to adjudicate the remaining Class 23
Members' naturalization applications and schedule those individuals who are 24
eligible to be naturalized for an oath ceremony on or before October 18, 2008. 25

26

27

' In accordance with Paragraph 12 ofthe Settlement Agreement, if additional Class Members decide to opt-

28

_out of the Class, the number of individuals who opt-out after July 21,2008 shall be subtracted from the total number of applications that must be adjudicated by September 19, 2008.

PROPOSED ORDER- I (C07-1739-MJP)

UNITED STATES ATTORNEY 700 STBWART STRBBT, Sl!ITE 5220 SEATTLE, WASHINGTON 98104-1271
TEL. (206)553-7970

Case 2:07-cv-01739-MJP Document 81 Filed 08/25/08 Page 2 of 3 Case 2:07-cv-01739-MJP Document 78-2 Filed 08/13/2008 Page 19 of 29

I

This Order is filed in conjunction with the Court's final approval of the parties' Settlement

2 Agreement. Should USCIS be unable to adjudicate the Class Members' applications in

3 accordance with this remand order, the parties are bound by the procedures outlined in Section IV

4 of the Settlement Agreement.

5

This remand does not constitute an award of attorneys' fees and costs to either party

6 except as set forth in the Settlement Agreement. All claims in the above-referenced action are

7 hereby DISMISSED with prejudice.

8

9

DATED this :>..S' day of August, 2008.

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

PROPOSED ORDER - 2 (C07-1739-MJP)

UNITED STATES ATTORNEY 700 STEWART STREET, SUITB 5220 SBATTLE, WASHINGTON 98104-1271
TEL. (206) 553-7970

Case 2:07-cv-01739-MJP Document 81 Filed 08/25/08 Page 3 of 3 Case 2:07-cv-01739-MJP Document 78-2 Filed 08/13/2008 Page 20 of 29

1 Presented by:

2 DATED: August 13, 2008.

3

4

STOEL RIVES LLP Attorney for Plaintiffs

5

6

/s/ Rita V. Latsinova RITA V. LATSINOVA, WSBA No.

7

24447600 University Street, Suite 3600 Seattle, WA 98101

8

(206) 624-0900 (206) 386-7500 (fax)

9 rvlatsinova@stoel.com

10 ROPES & ORAY LLP

11

ALFREDA. DAY, WSBANo. 34926 One International Place

12 Boston, MA 02110 617-951-7186 (main)

13 617-235-9684 (fax) alfred.day@ropesgray.com

14

15

16

DATED: August 13, 2008.
GREGORY G. KATSAS Assistant Attorney General
ELIZABETH J. STEVENS Assistant Director Office of Immigration Litigation District Court Section
!sf Nancy N. Safavi NANCY N. SAFAVI Conditionally admitted in the W.D. Wash. Trial Attorney Office of Immigration Litigation District Court Section Civil Division United States Department of Justice P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Phone: (202) 514-9875 Fax: (202) 616-8962 Email: Nancy.Safavi@usdoj.gov Attorneys for Defendants

17 AMERICAN CIVIL LIBERTIES UNION OF JEFFREY C. SULLIVAN

WASHINGTON FOUNDATION

UNITED STATES ATTORNEY

18 SARAH A. DUNNE, WSBA No. 34869

705 Second Avenue, Third Floor

19 Seattle, WA 98104

Is! Rebecca S. Cohen

206-624-2184 (main)

REBECCA S. COHEN, WSBA No. 31767

20 dunne@aclu-wa.org

Assistant United States Attorney

caplan@aclu-wa.org 21

U.S. Attorney's Office

'

Western District of Washington

22

NORTHWEST IMMIGRANT RIGHTS PROJECT

700 Stewart Street, Suite 5220 Seattle, Washington 98101

23

MATTHEW ADAMS, WSBA No. 28287 CHRISTOPHER STRAWN, WSBA No.

(206) 553-6526 Email: Rebecca.Cohen@usdoj.gov ·

24

32243 615 Second Avenue, Suite 400

Local Counsel for Defendants

25

Seattle, WA 98104 206-549-4009 (main)

26

matt@nwirp.org chris@nwirp.org

27

28

PROPOSED ORDER- 3 (C07-1739-MJP)

UNITED STATES ATTORNEY 700 STEWART STRBET, SUITE 5220 SEATTLE, WASHINGTON 98104-1271
TEL. (206) 553-7970

 </s> Case 2:07-cv-01739-MJP Document 82 Filed 08/25/08 Page 1 of 3 Case 2:07-cv~01739-MJP Document 78-2 Filed 08/13/2008 Page 27 of 29

Hon. Marsha J. Pechman

--~-

~---- ~--.

11111111111111111 IIIII IIIII IIIII 111111111 1111

11111111 111111111111111111111 II 1111

;r?

07-CV-01739-PET

6

7

8

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10 ROSHANAK ROSHANDEL, eta!.,"

11

Plaintiffs,

No. C07-1739-MJP

12

v.

[P~D) ORDER GRANTING

13 MICHAEL CHERTOFF, Secretary, United States FINAL APPROVAL OF SETTLEMENT

Department of Homeland Security, eta!.,

AGREEMENT

14

Defendants. 15
11--------------~------------~

16

17

ORDER

18

Having granted the parties' joint motion to preliminarily approve a settlement of the above-

. 19 captioned case, and after a duly noticed fairness hearing held on August 25, 2008,

20

IT IS HEREBY ORDERED THAT final approval of the parties' proposed settlement

21 agreement (the,~Agreement") is GRANTED. The terms of the Agreement are hereby

22 incorporated into this Order. The case is dismissed with prejudice and without an award of costs
23 or fees to either party except as set forth in the Agreement. Unless earlier terminated by 24 operation of Section VI of the Agreement,_the obligations of the Agreement shall terminate upon
ail 25 adjudication of Class Members' naturalization applications or upon the Court terminating the
26 Agreement. The Court shall retain continuing jurisdiction to supervise the implementation of the 27 Agreement and to enforce its terms. 28

[PROPOSED] Order Granting Final Approval of Settlement Agreement -I (C07-1739-MJP)

UNITED STATES ATTORNEY 10~ STIIWJIII.T ST&BET, SUlTB 5220 SBATTLB, W ,Uill.NOTON 98101~1271
(206) 5:53-7970

I
i Case 2:07-cv-01739-MJP Document 82 Filed 08/25/08 Page 2 of 3
Ca~e 2:07-cv-01739-MJP Document 78-2 Filed 0811312008 Page 28 of 29

I

1

I

I' T IS HEREBY SO ORDERED.

2

I

3

'
Datbd

this

~d~ ay

of

August,

2008.

4

I

5

6

7 United States District Court Judge
8

9

10

I '

Presented by:

11

I

12 13

ST0EL RIVES LLP

Att~rneys
!

for

Plaintif.fs

lsi Rita V. Latsinova

GREGORY G. KATSAS Assistant Attorney General
ELIZABETH J. STEVENS

14 RI'JlA V. LATSINOVA, WSBA No. 24447 Assistant Director

600. University Street, Suite 3600

District Court Section ·

15 Sea):tle, WA 9810I (206) 624-0900

Office of hnmigration Litigation

16

(206) 386-7500 (faX) rvl~sinova@stoel.com

. /s/NancyN. Safavi NANCYN. SAFAVI

17

I

18

! '
I

ROPES & GRAY LLP

Conditionally admitted in the W.D. Wash. Trial Attorney District Court Section Office of hnmigration Litigation

19 AttOrneys for Plaintiffs

Civil Division

I '

United States Department of Justice

20 lsi Alfred Arthur Day

P.O. Box 868, Ben Franklin Station

·ALFRED ARTHUR DAY, WSBA No. 34926 Washington, D.C. 20044

21 Orut International Place

Phone: (202) 514-9875

Boston, MA0211 0 22 (617) 951-7185

Fax: (202) 616-8962 Email: Nancy.Safavi@usdoj.gov

(617) 235-9684 (fax) 23 alfrl:d.day@ropesgray.com

Attorneys for Defendants

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[PROPOSED) Order Granting Final Approval of Se!llemenl Agreement - 2

(C07-J139-MJP)

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UNITED STATES ATTORNEY 700 STIIWAI.T STB.BIIT, 8UITll 5220 SBATJ'LB, WASHINGTON98101-1271
(206) 5-53-797D

Case 2:07-cv-01739-MJP Document 82 Filed 08/25/08 Page 3 of 3 Case 2:07-cv-01739-MJP Document 78-2 Filed 08/13/2008 Page 29 of 29

1 SARAH A. DUNNE, WSBA No. 34869

JEFFREY C. SULLIVAN

2 AMERICAN CIVIL LIBERTIES UNION OF UNITED STATES ATTORNEY
WASHINGTON FOUNDATION

3

705 Second Avenue, Third Floor Seattle, WA 98104

4 206-624-2184 (main) dmme@aclu-wa.org

5 caplan@aclu-wa.org

Is! Rebecca S. Cohen REBECCA S. COHEN, WSBA No. 31767 Assistant United States Attorney U.S. Attorney's Office Western District ofWashington

6 NORTHWEST IMMIGRANT RIGHTS

700 Stewart Street, Suite 5220

PROJECT

Seattle Washington 98101

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MATTHEW ADAMS, WSBA No. 28287 CHRISTOPHER STRAWN, WSBA No. 32243

(206~

5'53-6526

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8 615 Second Avenue, Suite 400

Emali: Rebecca.Cohen@usdoJ.gov

Seattle, WA 98104

Local Counsel for Defendants

9 206-549-4009 (main)
matt@nwirp.org

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[PROPOSED] Order Granting Final Approval of Settlement Agreement - 3 (C07-l 739-MJP)

UNITED STATES ATTORNI!Y 700 STBWIIJI.T STRUT, SUITB S220 SBATTLB, WASHINOTOM91UOI,I271
(206)5S3-7971J

 </s> Case: 2:07-cv-01739-MJP As of: 07/03/2012 08:03 AM PDT 1 of 14
CLOSED,JURYDEMAND
U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:07−cv−01739−MJP

Roshandel et al v. Chertoff et al Assigned to: Judge Marsha J. Pechman Cause: 8:1446 Petition for Naturalization Hearing
Plaintiff

Date Filed: 10/29/2007 Date Terminated: 12/08/2008 Jury Demand: Plaintiff Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

Roshanak Roshandel

represented by Alfred Arthur Day ROPES &GRAY (MA) PRUDENTIAL TOWER 800 BOYLSTON TOWER BOSTON, MA 02199−3600 617−951−7186 Fax: 617−235−9684 Email: alfred.day@ropesgray.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Strawn NORTHWEST IMMIGRANT RIGHTS PROJECT (SEA) 615 2ND AVE STE 400 SEATTLE, WA 98104 206−957−8611 Email: chris@nwirp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margarita V Latsinova STOEL RIVES (WA) 600 UNIVERSITY ST STE 3600 SEATTLE, WA 98101−3197 206−624−0900 Fax: 206−386−7500 Email: rvlatsinova@stoel.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matt Adams NORTHWEST IMMIGRANT RIGHTS PROJECT (SEA) 615 2ND AVE STE 400 SEATTLE, WA 98104 206−957−8611 Email: matt@nwirp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah A Dunne ACLU OF WASHINGTON 901 FIFTH AVENUE SUITE 630 SEATTLE, WA 98164 206−624−2184

Case: 2:07-cv-01739-MJP As of: 07/03/2012 08:03 AM PDT 2 of 14

Email: dunne@aclu−wa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aaron H Caplan LOYOLA LAW SCHOOL LOS ANGELES 919 ALBANY STREET LOS ANGELES, CA 90015 213−736−1074 Email: aaron.caplan@lls.edu TERMINATED: 06/13/2008

Plaintiff Vafa Ghazi−Moghaddam

represented by Alfred Arthur Day (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Strawn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margarita V Latsinova (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matt Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah A Dunne (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aaron H Caplan (See above for address) TERMINATED: 06/13/2008

Plaintiff Hawo Ahmed

represented by Alfred Arthur Day (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Strawn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margarita V Latsinova (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matt Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:07-cv-01739-MJP As of: 07/03/2012 08:03 AM PDT 3 of 14

Sarah A Dunne (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aaron H Caplan (See above for address) TERMINATED: 06/13/2008

Plaintiff Lin Huang

represented by Alfred Arthur Day (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Strawn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margarita V Latsinova (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matt Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah A Dunne (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aaron H Caplan (See above for address) TERMINATED: 06/13/2008

Plaintiff Ahmad Alkabra

represented by Alfred Arthur Day (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Strawn NORTHWEST IMMIGRANT RIGHTS PROJECT (SEA) 615 2ND AVE STE 400 SEATTLE, WA 98104 206−957−8628 Fax: 206−587−4025 Email: chris@nwirp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margarita V Latsinova (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matt Adams (See above for address)

Case: 2:07-cv-01739-MJP As of: 07/03/2012 08:03 AM PDT 4 of 14

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah A Dunne (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aaron H Caplan (See above for address) TERMINATED: 06/13/2008

Plaintiff Mohammad Reza Aidinejad

represented by Alfred Arthur Day (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Strawn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margarita V Latsinova (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matt Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah A Dunne (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aaron H Caplan (See above for address) TERMINATED: 06/13/2008

Plaintiff Zahra Abedin

represented by Alfred Arthur Day (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Strawn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margarita V Latsinova (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matt Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah A Dunne

Case: 2:07-cv-01739-MJP As of: 07/03/2012 08:03 AM PDT 5 of 14
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron H Caplan (See above for address) TERMINATED: 06/13/2008

V. Defendant Michael Chertoff Secretary, United States Department of Homeland Security
Defendant Emilio Gonzalez Director, United States Citizenship and Immigration Services
Defendant Ann Corsano Director, District 20, United States Citizenship and Immigration Services

represented by Nancy Safavi US DEPARTMENT OF JUSTICE (BOX 878) PO BOX 878 BEN FRANKLIN STATION WASHINGTON, DC 20044 202−514−9875 Email: nancy.Safavi@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Priscilla To−Yin Chan US ATTORNEY'S OFFICE (SEA) 700 STEWART ST STE 5220 SEATTLE, WA 98101−1271 206−553−7970 Email: Priscilla.Chan@usdoj.gov ATTORNEY TO BE NOTICED
Rebecca Shapiro Cohen US ATTORNEY'S OFFICE (SEA) 700 STEWART ST STE 5220 SEATTLE, WA 98101−1271 206−553−6526 Fax: 206−553−4073 Email: rebecca.cohen@usdoj.gov TERMINATED: 10/14/2008
represented by Nancy Safavi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Priscilla To−Yin Chan (See above for address) ATTORNEY TO BE NOTICED
Rebecca Shapiro Cohen (See above for address) TERMINATED: 10/14/2008
represented by Nancy Safavi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Priscilla To−Yin Chan

Case: 2:07-cv-01739-MJP As of: 07/03/2012 08:03 AM PDT 6 of 14

(See above for address) ATTORNEY TO BE NOTICED

Rebecca Shapiro Cohen (See above for address) TERMINATED: 10/14/2008

Defendant
Julia Harrison Director, Seattle Field Office, United States Citizenship and Immigration Services

represented by Nancy Safavi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Priscilla To−Yin Chan (See above for address) ATTORNEY TO BE NOTICED

Rebecca Shapiro Cohen (See above for address) TERMINATED: 10/14/2008

Defendant
Peter Keisler Acting Attorney General, United States Department of Justice TERMINATED: 04/08/2008

represented by Nancy Safavi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca Shapiro Cohen (See above for address) TERMINATED: 10/14/2008

Defendant
Robert Mueller, III Director, Federal Bureau of Investigation

represented by Nancy Safavi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Priscilla To−Yin Chan (See above for address) ATTORNEY TO BE NOTICED

Rebecca Shapiro Cohen (See above for address) TERMINATED: 10/14/2008

Defendant United States of America

represented by Nancy Safavi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Priscilla To−Yin Chan (See above for address) ATTORNEY TO BE NOTICED

Rebecca Shapiro Cohen (See above for address) TERMINATED: 10/14/2008

Defendant Mr. Michael Mukasey

represented by Nancy Safavi (See above for address)

Case: 2:07-cv-01739-MJP As of: 07/03/2012 08:03 AM PDT 7 of 14
ATTORNEY TO BE NOTICED
Priscilla To−Yin Chan (See above for address) ATTORNEY TO BE NOTICED
Rebecca Shapiro Cohen (See above for address) TERMINATED: 10/14/2008

Date Filed 10/29/2007
11/12/2007 11/21/2007 11/21/2007 11/21/2007 11/28/2007 12/21/2007 01/02/2008
01/08/2008 01/08/2008 01/22/2008

# Docket Text
1 COMPLAINT −− CLASS ACTION against defendant(s) Michael Chertoff, Emilio Gonzalez, Ann Corsano, Julia Harrison, Peter Keisler, Robert Mueller, III, United States of America (Summons(es) issued)(Receipt #: SEA13048), filed by Hawo Ahmed, Lin Huang, Roshanak Roshandel, Vafa Ghazi−Moghaddam. (Attachments: # 1 Civil Cover Sheet)(DJ). (Entered: 10/31/2007)
2 DECLARATION of Service by Plaintiff Roshandel Roshanak. (Attachments: # 1 Exhibit A)(Day, Alfred) (Entered: 11/12/2007)
3 NOTICE of Appearance by attorney Rebecca Shapiro Cohen on behalf of Defendants Michael Chertoff, Emilio Gonzalez, Ann Corsano, Julia Harrison, Peter Keisler, Robert Mueller, III, United States of America. (Cohen, Rebecca) (Entered: 11/21/2007)
4 MOTION to Certify Class by Plaintiffs Hawo Ahmed, Lin Huang, Roshanak Roshandel, Vafa Ghazi−Moghaddam. Oral Argument Requested. (Attachments: # 1 Proposed Order Granting Motion for Class Certification)Noting Date 1/18/2008.(Latsinova, Margarita). (Entered: 11/21/2007)
5 DECLARATION of Rita V. Latsinova in Support of 4 MOTION to Certify Class (Attachments: # 1 Exhibit Annual report 2007# 2 Exhibit Table 23# 3 Exhibit Notices)(Latsinova, Margarita) Modified on 11/23/2007 (ECS, ). (Entered: 11/21/2007)
6 ORDER REGARDING INITIAL DISCLOSURES, JOINT STATUS REPORT AND EARLY SETTLEMENT Joint Status Report due by 1/9/2008, FRCP 26f Conference Deadline is 12/26/2007, Initial Disclosure Deadline is 1/2/2008 by Judge Marsha J. Pechman. (ADO) (Entered: 11/28/2007)
7 STIPULATION AND PROPOSED AGREED ORDER MODIFYING CASE DEADLINES by parties. (Day, Alfred) Modified text on 12/26/2007 (MD, ). (Entered: 12/21/2007)
8 STIPULATION AND AGREED ORDER MODIFYING CASE DEADLINES re 7 Stipulation filed by Roshanak Roshandel: Defendants shall have until 1/8/08 to answer, move or otherwise respond to plaintiffs' Class Action Complaint; Defendants shall file their anticipated motion to dismiss plaintiffs' Class action complaint on or before 1/8/2008,Initial Disclosure Deadline is 1/18/2008.,Joint Status Report due by 1/22/2008. Plaintiffs shall re−note their pending motion − 4 MOTION to Certify Class on February 22, 2008by Judge Marsha J. Pechman. (MD, ) (Entered: 01/03/2008)
9 MOTION to Remand to USCIS and/or dismiss by Defendants Michael Chertoff, Emilio Gonzalez, Ann Corsano, Julia Harrison, Peter Keisler, Robert Mueller, III, United States of America. (Attachments: # 1 Proposed Order # 2 Exhibit Ex. A (Cannon Decl.))Noting Date 2/22/2008.(Cohen, Rebecca) (Entered: 01/08/2008)
10 DECLARATION of Susan Walk filed by Defendants Michael Chertoff, Emilio Gonzalez, Ann Corsano, Julia Harrison, Peter Keisler, Robert Mueller, III, United States of America re 9 MOTION to Remand to USCIS and/or dismiss (Cohen, Rebecca) (Entered: 01/08/2008)
Noting Date Set/Reset re 4 MOTION to Certify Class : Noting Date 2/22/2008. (ADO) (Entered: 01/22/2008)

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01/22/2008 01/28/2008
02/13/2008 02/13/2008
02/13/2008 02/22/2008 02/22/2008 02/22/2008 03/11/2008
03/12/2008 04/08/2008
04/10/2008 04/10/2008
04/11/2008

11 JOINT STATUS REPORT signed by all parties; estimated Trial Days: n/a.. (Cohen, Rebecca) (Entered: 01/22/2008)
12 MINUTE ORDER re 11 Joint Status Report. Having reviewed the JSR, the parties are directed to file a supplemental joint status report ten calendar days after the Court issues an order on the pending motion to dismiss/remand or motion for class certification, whichever comes later by Judge Marsha J. Pechman. (ADO) (Entered: 01/28/2008)
13 RESPONSE, by Plaintiff Roshanak Roshandel, to 9 MOTION to Remand to USCIS and/or dismiss. Oral Argument Requested. (Attachments: # 1 Exhibit 1 (pp 25−39)# 2 Exhibit 2 (pp 40−60)# 3 Exhibit 3 (pp 61−62)# 4 Exhibit 4 (pp 63−72)# 5 Exhibit 5 (pp 73−75)# 6 Exhibit 6 (76−114))(Day, Alfred) (Entered: 02/13/2008)
14 DECLARATION of Alfred A. Day in Support of Plaintiffs' Opposition to Motion to Dismiss and/or Remand filed by Plaintiff Roshanak Roshandel re 9 MOTION to Remand to USCIS and/or dismiss (Attachments: # 1 Exhibit A (pp 4−6)# 2 Exhibit B (pp 7−9)# 3 Exhibit C (pp 10−12)# 4 Exhibit D (pp 13−16)# 5 Exhibit E (pp 17−22))(Day, Alfred) (Entered: 02/13/2008)
15 RESPONSE, by Defendants Michael Chertoff, Emilio Gonzalez, Ann Corsano, Julia Harrison, Peter Keisler, Robert Mueller, III, to 4 MOTION to Certify Class. (Cohen, Rebecca) (Entered: 02/13/2008)
16 REPLY, filed by Plaintiffs Hawo Ahmed, Roshanak Roshandel, Vafa Ghazi−Moghaddam, TO RESPONSE to 4 MOTION to Certify Class (Latsinova, Margarita) (Entered: 02/22/2008)
17 REPLY, filed by Defendants Michael Chertoff, Emilio Gonzalez, Ann Corsano, Julia Harrison, Peter Keisler, Robert Mueller, III, United States of America, TO RESPONSE to 9 MOTION to Remand to USCIS and/or dismiss (Cohen, Rebecca) (Entered: 02/22/2008)
18 DECLARATION of Nancy Safavi filed by Defendants Michael Chertoff, Emilio Gonzalez, Ann Corsano, Julia Harrison, Peter Keisler, Robert Mueller, III, United States of America re 9 MOTION to Remand to USCIS and/or dismiss (Attachments: # 1 Exhibit A)(Cohen, Rebecca) (Entered: 02/22/2008)
19 NOTICE OF WITHDRAWAL AND SUBSTITUTION OF COUNSEL on behalf of Plaintiffs Hawo Ahmed, Lin Huang, Roshanak Roshandel, Vafa Ghazi−Moghaddam. Margarita V Latsinova is substituted as counsel for Plaintiffs. Al Day is no longer associated with Stoel Rives (Latsinova, Margarita) (Entered: 03/11/2008)
20 MINUTE ORDER In−court Hearing set for 4/11/2008 at 02:30 PM in Courtroom 14206 before Hon. Marsha J. Pechman.by Judge Marsha J. Pechman. (ADO) (Entered: 03/12/2008)
21 AMENDED COMPLAINT − CLASS ACTION against defendant(s) Michael Mukasey, Michael Chertoff, Emilio Gonzalez, Ann Corsano, Julia Harrison, Robert Mueller, III, United States of America, filed by Hawo Ahmed, Lin Huang, Roshanak Roshandel, Vafa Ghazi−Moghaddam.(Latsinova, Margarita) (Entered: 04/08/2008)
22 SUPPLEMENT re 9 MOTION to Remand to USCIS and/or dismiss by Defendants Michael Mukasey, Michael Chertoff, Emilio Gonzalez, Ann Corsano, Julia Harrison, Robert Mueller, III, United States of America. (Cohen, Rebecca) (Entered: 04/10/2008)
23 DECLARATION of Second Declaration of Susan Walk re 22 Supplement Supplemental Motion to Dismiss and/or Remand to USCIS by Defendants Michael Mukasey, Michael Chertoff, Emilio Gonzalez, Ann Corsano, Julia Harrison, Robert Mueller, III, United States of America. (Attachments: # 1 Exhibit A)(Cohen, Rebecca) (Entered: 04/10/2008)
24 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman − Dep Clerk: Eileen Scollard; Pla Counsel: Alfred Day/Rita Latsinova, et al; Def Counsel: Nancy Safavi, et al; CR: Nichole Rhynhard; Time of Hearing: 2:30 p.m.; Motion

Case: 2:07-cv-01739-MJP As of: 07/03/2012 08:03 AM PDT 9 of 14

04/23/2008
04/24/2008
04/25/2008 04/25/2008 04/25/2008
04/29/2008 05/05/2008 05/12/2008 05/13/2008 05/19/2008 05/20/2008 05/21/2008 05/23/2008

Hearing held on 4/11/2008 re 4 MOTION to Certify Class filed by Roshanak Roshandel, Vafa Ghazi−Moghaddam, Lin Huang, Hawo Ahmed, 9 MOTION to Remand to USCIS and/or dismiss filed by Ann Corsano, Robert Mueller, III, Michael Chertoff, Peter Keisler, Julia Harrison, Emilio Gonzalez, United States of America. Court hears argument and will issue a written decision. (ES) (Entered: 04/11/2008)
25 MOTION Motion to Consider Declaration of Julia Harrison re 4 MOTION to Certify Class, 22 Supplement, 9 MOTION to Remand to USCIS and/or dismiss by Defendants Michael Mukasey, Michael Chertoff, Emilio Gonzalez, Ann Corsano, Julia Harrison, Robert Mueller, III, United States of America. (Attachments: # 1 Exhibit A (Harrison Declaration)# 2 Proposed Order)Noting Date 5/9/2008.(Safavi, Nancy) (Entered: 04/23/2008)
26 NOTICE to Court Re: Clarification of Statement Made At Oral Argument On 4.11.08 ; filed by Defendants Michael Mukasey, Michael Chertoff, Emilio Gonzalez, Ann Corsano, Julia Harrison, Robert Mueller, III, United States of America. (Attachments: # 1 Exhibit A (Safavi Declaration)# 2 Exhibit B (Smith Declaration))(Safavi, Nancy) (Entered: 04/24/2008)
27 DECLARATION of Michael A. Cannon re 26 Notice−Other, by Defendants Michael Mukasey, Michael Chertoff, Emilio Gonzalez, Ann Corsano, Julia Harrison, Robert Mueller, III, United States of America. (Safavi, Nancy) (Entered: 04/25/2008)
28 ORDER granting 4 Motion to Certify Class by Judge Marsha J. Pechman.(CS) (Entered: 04/25/2008)
29 NOTICE of Corrected Image/Document re 28 Order on Motion to Certify Class. (Service of corrected image is attached). (MD, ) Modified on 4/30/2008 − "THE COURT HAS MADE A NUMBER OF TYPOGRAPHICAL AND BLUE BOOK EDITS THAT ARE REFLECTED IN THIS CORRECTED ORDER. THE COURT MADE NO SUBSTANTIVE CHANGES TO THE ORIGINAL ORDER ENTERED ON 4/25/08 {DKT. NO. 28]"(MD, ). (Entered: 04/29/2008)
NOTICE of Docket Text Modification re 29 Notice of Corrected Image/Document: "The Court has made a number of typographical and Blue Book edits that are reflected in this Corrected Order. The Court made no substantive changes to the original order entered on 4/25/08 [Dkt. No. 28]." (MD, ) (Entered: 04/30/2008)
30 ORDER denying 9 Motion to Remand and/or Dismiss by Judge Marsha J. Pechman.(CS) (Entered: 05/05/2008)
31 JOINT STATUS REPORT signed by all parties;. (Attachments: # 1 Exhibit A (Plaintiffs' Proposed Class Notice), # 2 Exhibit B (Defendants' Response to Plaintiffs' Class Notice))(Safavi, Nancy) (Entered: 05/12/2008)
32 ORDER denying as moot 25 Motion to consider Harrison Declaration by Judge Marsha J. Pechman.(ADO) (Entered: 05/13/2008)
33 ANSWER to 21 Amended Complaint, by Michael Mukasey, Michael Chertoff, Emilio Gonzalez, Ann Corsano, Julia Harrison, Robert Mueller, III, United States of America.(Safavi, Nancy) (Entered: 05/19/2008)
34 MINUTE ORDER re: Joint Status Report and Stipulated Motion to Clarify the Class Definition. Joint Status Report due by 5/28/2008; by Judge Marsha J. Pechman. (ADO) (Entered: 05/20/2008)
35 NOTICE of Change of Address of Attorney Alfred Arthur Day. Filed by Plaintiffs Ahmad Alkabra, Mohammad Reza Aidinejad, Zahra Abedin, Hawo Ahmed, Lin Huang, Roshanak Roshandel, Vafa Ghazi−Moghaddam. (Day, Alfred) (Entered: 05/21/2008)
36 Stipulated MOTION for Clarification by Defendants Michael Mukasey, Michael Chertoff, Emilio Gonzalez, Ann Corsano, Julia Harrison, Robert Mueller, III, United States of America. (Attachments: # 1 Exhibit A) Noting Date 5/23/2008; (Safavi, Nancy) (Entered: 05/23/2008)

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05/27/2008 05/28/2008 05/29/2008
06/03/2008 06/03/2008 06/03/2008 06/04/2008
06/09/2008
06/11/2008 06/11/2008
06/11/2008
06/12/2008 06/12/2008 06/12/2008

37 DEMAND for JURY TRIAL by Plaintiffs Ahmad Alkabra, Mohammad Reza Aidinejad, Zahra Abedin, Hawo Ahmed, Lin Huang, Roshanak Roshandel, Vafa Ghazi−Moghaddam. (Latsinova, Margarita) (Entered: 05/27/2008)
38 JOINT STATUS REPORT signed by all parties;. (Safavi, Nancy) (Entered: 05/28/2008)
39 MOTION for Partial Summary Judgment by Plaintiffs Ahmad Alkabra, Mohammad Reza Aidinejad, Zahra Abedin, Hawo Ahmed, Lin Huang, Roshanak Roshandel, Vafa Ghazi−Moghaddam. (Attachments: # 1 Proposed Order Granting Motion for Partial SJ) Noting Date 6/20/2008; (Latsinova, Margarita) (Entered: 05/29/2008)
40 STIPULATION AND PROPOSED ORDER re REMAND by parties re 30 Order on Motion to Remand, 24 Motion Hearing,,. (Latsinova, Margarita) (Entered: 06/03/2008)
41 ORDER granting 36 Stipulated Motion to Amend Class Definition by Judge Marsha J. Pechman.(ADO) (Entered: 06/03/2008)
42 STIPULATION AND ORDER OF REMAND re 40 Stipulation filed by Roshanak Roshandel, Zahra Abedin, Mohammad Reza Aidinejad, Vafa Ghazi−Moghaddam, Ahmad Alkabra, Lin Huang, Hawo Ahmed by Judge Marsha J. Pechman. (MD) (Entered: 06/04/2008)
43 MOTION to Continue Noting Date for Plaintiffs' Motion for Partial Summary Judgment by Defendants Michael Mukasey, Michael Chertoff, Emilio Gonzalez, Ann Corsano, Julia Harrison, Robert Mueller, III, United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Proposed Order) Noting Date 6/13/2008; (Safavi, Nancy) (Entered: 06/04/2008)
44 RESPONSE, by Plaintiffs Ahmad Alkabra, Mohammad Reza Aidinejad, Zahra Abedin, Hawo Ahmed, Lin Huang, Roshanak Roshandel, Vafa Ghazi−Moghaddam, to 43 MOTION to Continue Noting Date for Plaintiffs' Motion for Partial Summary Judgment. (Latsinova, Margarita) (Entered: 06/09/2008)
45 Agreed MOTION to Remand Retroactively to USCIS (and proposed order) by Defendants Michael Mukasey, Michael Chertoff, Emilio Gonzalez, Ann Corsano, Julia Harrison, Robert Mueller, III, United States of America. Noting Date 6/11/2008; (Safavi, Nancy) (Entered: 06/11/2008)
46 DECLARATION of Julia Harrison filed by Defendants Michael Mukasey, Michael Chertoff, Emilio Gonzalez, Ann Corsano, Julia Harrison, Robert Mueller, III, United States of America re 45 Agreed MOTION to Remand Retroactively to USCIS (and proposed order)Agreed MOTION to Remand Retroactively to USCIS (and proposed order) (Safavi, Nancy) (Entered: 06/11/2008)
47 NOTICE of Joinder JOINING 45 Agreed MOTION to Remand Retroactively to USCIS (and proposed order)Agreed MOTION to Remand Retroactively to USCIS (and proposed order), by Plaintiffs Ahmad Alkabra, Mohammad Reza Aidinejad, Zahra Abedin, Hawo Ahmed, Lin Huang, Roshanak Roshandel, Vafa Ghazi−Moghaddam. (Latsinova, Margarita) (Entered: 06/11/2008)
48 MINUTE ORDER re: 45 Agreed MOTION to Remand. The Court strikes the "Agreed Motion" because it appears that the parties are not in agreement. The parties are directed to meet and confer and offer a proposed agreed order by Judge Marsha J. Pechman. (ADO) (Entered: 06/12/2008)
49 STIPULATION AND PROPOSED ORDER regarding request for retroactive remand by parties. (Safavi, Nancy) (Entered: 06/12/2008)
50 ORDER SETTING TRIAL DATE AND RELATED DATES; Length of Trial: *UNKNOWN*. Jury Trial is set for 6/15/2009 at 09:00 AM before Judge Marsha J. Pechman. Class Notification complete July 3, 2009; Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 8/3/2008; Motions due by 8/3/2008; Discovery completed by 10/3/2008; A. USCIS provides A−files for 3 new named plaintiffs 6/6/08; b. USCIS provides updated FBI administrative record

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06/12/2008
06/13/2008 06/13/2008 06/13/2008 06/13/2008 06/13/2008 06/13/2008 06/16/2008 06/16/2008

regarding 3 new named plaintiffs by 6/6/08; c. USCIS provides administrative record regard class claims by 6/20/08; Dispositive motions on APA claims due by 11/17/2008; Dispositive motions deadline on 8 USC 1447(b) claims (to be decided after filing of JSR after Court rules on APA motions); Cross−motions shall be filed using a four brief briefing schedule; Parties to file their opening motions on the same day no later than 11/17/08; Responses to those motions must be filed no later than 12/12/08; No reply briefs are to be filed unless directed by the Court, except as authorized by Local CR 7(g); Supplemental Joint Status Report (to be filed 10 calendar days after Court's ruling on APA motions); Settlement conference to be held by 10/17/2008; 39.1 Settlement Report due by 11/17/2008; Motions in Limine due by 5/19/2009; Pretrial Order due by 6/3/2009; Pretrial Conference set for 6/5/2009 at 10:00 AM before Judge Marsha J. Pechman. Trial briefs to be submitted by 6/10/2009; Proposed voir dire/jury instructions due by 6/10/2009; by Judge Marsha J. Pechman. (MD) (Entered: 06/12/2008)
57 AMENDED ORDER SETTING TRIAL DATE AND RELATED DATES; Length of Trial: *UNKNOWN*. Jury Trial is set for 6/15/2009 at 09:00 AM before Judge Marsha J. Pechman. Class Notification Mailed July 3, 2008; Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 8/3/2008; Motions due by 9/3/2008; Discovery completed by 10/3/2008; A. USCIS provides A−files for 3 new named plaintiffs of 6/6/08; B. USCIS provides updated FBI administrative record regarding 3 new named plaintiffs by 6/6/08; C. USCIS provides administrative record regard class claims by 6/20/08; Dispositive motions due by 11/17/2008; Supplemental Joint Status Report − to be filed 10 calendar days after Court's ruling on final dispositive motions; Settlement conference to be held by 10/17/2008; 39.1 Settlement Report due by 11/17/2008; Motions in Limine due by 5/19/2009; Pretrial Order due by 6/3/2009; Pretrial Conference set for 6/5/2009 at 10:00 AM before Judge Marsha J. Pechman. Trial briefs to be submitted by 6/10/2009; Proposed voir dire/jury instructions due by 6/10/2009; by Judge Marsha J. Pechman. (MD) (Entered: 06/16/2008)
51 STIPULATION AND PROPOSED ORDER re CONFIDENTIALITY OF DISCOVERY MATERIAL by parties. (Latsinova, Margarita) Modified text on 6/16/2008 (MD). (Entered: 06/13/2008)
52 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Aaron H Caplan for Plaintiffs Ahmad Alkabra, Mohammad Reza Aidinejad, Zahra Abedin, Hawo Ahmed, Lin Huang, Roshanak Roshandel, Vafa Ghazi−Moghaddam. (Dunne, Sarah) (Entered: 06/13/2008)
53 STIPULATION AND ORDER RE: REQUEST FOR RETROACTIVE REMAND re 49 Stipulation filed by Ann Corsano, Robert Mueller, III, Michael Chertoff, Michael Mukasey, Julia Harrison, Emilio Gonzalez, United States of America by Judge Marsha J. Pechman. (MD) (Entered: 06/13/2008)
54 NOTICE Re Joint Submission of Proposed Class Notice ; filed by Defendants Michael Mukasey, Michael Chertoff, Emilio Gonzalez, Ann Corsano, Julia Harrison, Robert Mueller, III, United States of America. (Attachments: # 1 Exhibit A)(Safavi, Nancy) (Entered: 06/13/2008)
55 STIPULATION AND PROPOSED ORDER Re: Release of Information to Class Counsel by parties. (Safavi, Nancy) (Entered: 06/13/2008)
56 REPLY, filed by Defendants Michael Mukasey, Michael Chertoff, Emilio Gonzalez, Ann Corsano, Julia Harrison, Robert Mueller, III, United States of America, TO RESPONSE to 43 MOTION to Continue Noting Date for Plaintiffs' Motion for Partial Summary Judgment (Safavi, Nancy) (Entered: 06/13/2008)
58 RESPONSE, by Defendants Michael Mukasey, Michael Chertoff, Emilio Gonzalez, Ann Corsano, Julia Harrison, Robert Mueller, III, United States of America, to 39 MOTION for Partial Summary Judgment. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Cohen, Rebecca) (Entered: 06/16/2008)
59 DECLARATION of Julia Harrison filed by Defendants Michael Mukasey, Michael Chertoff, Emilio Gonzalez, Ann Corsano, Julia Harrison, Robert Mueller, III, United States of America re 39 MOTION for Partial Summary Judgment (Attachments: # 1 Exhibit A)(Cohen, Rebecca) (Entered: 06/16/2008)

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06/19/2008 06/19/2008 06/19/2008 06/20/2008 06/20/2008 06/20/2008 06/20/2008
06/20/2008
06/25/2008 06/25/2008
06/30/2008 07/02/2008
07/08/2008

60 ORDER approving class notice re 54 Notice−Other, filed by Ann Corsano, Robert Mueller, III, Michael Chertoff, Michael Mukasey, Julia Harrison, Emilio Gonzalez, United States of America by Judge Marsha J. Pechman. (ADO) (Entered: 06/19/2008)
61 STIPULATION AND ORDER re release of information to class counsel by Judge Marsha J. Pechman. (RS) (Entered: 06/19/2008)
62 ORDER STRIKING 51 Stipulation re: Confidentiality of Discovery Material by Judge Marsha J. Pechman. (ADO) (Entered: 06/19/2008)
63 STIPULATION AND PROPOSED ORDER requesting appointment of magistrate judge to serve as mediator by parties. (Safavi, Nancy) (Entered: 06/20/2008)
64 STIPULATION AND PROPOSED ORDER of REMAND by parties. (Latsinova, Margarita) (Entered: 06/20/2008)
65 STIPULATION AND PROPOSED ORDER re Confidentiality of Discovery Materials by parties re 51 Stipulation. (Latsinova, Margarita) (Entered: 06/20/2008)
66 REPLY, filed by Plaintiffs Ahmad Alkabra, Mohammad Reza Aidinejad, Zahra Abedin, Hawo Ahmed, Lin Huang, Roshanak Roshandel, Vafa Ghazi−Moghaddam, TO RESPONSE to 39 MOTION for Partial Summary Judgment (Attachments: # 1 Proposed Order Granting Plaintiffs' Motion for Partial Summary Judgment)(Latsinova, Margarita) (Entered: 06/20/2008)
67 DECLARATION of Al Day re Reply in Support of Plaintiffs' Motion for Partial Summary Judgment w/Ex A filed by Plaintiffs Ahmad Alkabra, Mohammad Reza Aidinejad, Zahra Abedin, Hawo Ahmed, Lin Huang, Roshanak Roshandel, Vafa Ghazi−Moghaddam re 39 MOTION for Partial Summary Judgment (Latsinova, Margarita) (Entered: 06/20/2008)
68 ORDER granting 43 Motion to Continue and re−noting 39 MOTION for Partial Summary Judgment : Noting Date 8/8/2008; by Judge Marsha J. Pechman.(ADO) (Entered: 06/25/2008)
69 STIPULATION AND ORDER OF REMAND AS TO PLTF MR. ALKABRA'S NATURALIZATION APPLICATION re 64 Stipulation filed by Roshanak Roshandel, Zahra Abedin, Mohammad Reza Aidinejad, Vafa Ghazi−Moghaddam, Ahmad Alkabra, Lin Huang, Hawo Ahmed by Judge Marsha J. Pechman. (MD) (Entered: 06/26/2008)
70 STIPULATION AND ORDER RE: CONFIDENTIALITY OF DISCOVERY MATERIAL re 65 Stipulation filed by Roshanak Roshandel, Zahra Abedin, Mohammad Reza Aidinejad, Vafa Ghazi−Moghaddam, Ahmad Alkabra, Lin Huang, Hawo Ahmed by Judge Marsha J. Pechman. (MD) (Entered: 06/30/2008)
71 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman− Dep Clerk: Eileen Scollard; Pla Counsel: Alfred Day; Def Counsel: Nancy Safavi, et al; CR: none; Time of Hearing: 15 mins.; In Chambers Conference held on 7/2/08. Court to refer to a MagistrateJudge for a settlement conference. (ES) (Entered: 07/02/2008)
72 MINUTE ORDER setting settlement conference and confidential brief deadline by Hon. Brian A. Tsuchida.

07/08/2008

Settlement Conference set for 7/21/2008 at 09:00 AM in Courtroom 12A before Hon. Brian A Tsuchida. Confidential settlement brief due no later than Wednesday July 16, 2008. (AE) (Entered: 07/08/2008)
73 STIPULATION AND ORDER REQUESTING APPOINTMENT OF MAGISTRATE JUDGE TO CONDUCT MEDIATION − APPOINTED MAGISTRATE JUDGE TSUCHIDA re 63 Stipulation filed by Ann Corsano, Robert Mueller, III, Michael Chertoff, Michael Mukasey, Julia Harrison, Emilio Gonzalez, United States of America by Judge Marsha J. Pechman. (MD, copy to MJ Tsuchida) (Entered: 07/08/2008)

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07/21/2008 07/24/2008 08/11/2008 08/11/2008 08/12/2008
08/13/2008 08/13/2008 08/15/2008 08/25/2008 08/25/2008
08/25/2008

74 MINUTE ENTRY for proceedings held before Hon. Brian A Tsuchida− Settlement Conference held on 7/21/2008. (AE) (Entered: 07/22/2008)
Set Hearing: In−court Hearing re Fairness of Settlement is scheduled for 8/25/08 at 9:00 a.m. before Judge Marsha J. Pechman. (ES) (Entered: 07/24/2008)
75 Joint MOTION AND PROPOSED ORDER− preliminary approval of proposed settlement agreement and proposed class notice by Defendants Michael Mukasey, Michael Chertoff, Emilio Gonzalez, Ann Corsano, Julia Harrison, Robert Mueller, III, United States of America. (Attachments: # 1 Exhibit 1 (Settlement Agreement, with attachments A−C)) Noting Date 8/11/2008 (Safavi, Nancy) Modified text on 8/12/2008 (MD). (Entered: 08/11/2008)
76 STIPULATION AND PROPOSED ORDER for class wide remand by parties. (Safavi, Nancy) (Entered: 08/11/2008)
77 MINUTE ORDER − The Court held a telephone conference with the parties on Tuesday, August 12, 2008 to discuss sections of the proposed settlement agreement and stipulation for remand regarding jurisdiction re: 75 Joint MOTION preliminary approval of proposed settlement agreement and proposed class notice filed by Ann Corsano, Robert Mueller, III, Michael Chertoff, Michael Mukasey, Julia Harrison, Emilio Gonzalez, United States of America. The Court requested that Ms. Safavi meet and confer with her clients and provide the Court with a report on what actions must be completed to prepare the remaining naturalization applications for adjudication and whether those actions can be accomplished without a remand order from the Court by Judge Marsha J. Pechman. (MD) (Entered: 08/12/2008)
Reset Hearing: At the request of the parties, the Fairness of Settlement Hearing scheduled for 8/28/08 is rescheduled for 8/25/2008 at 9:00 a.m. before Judge Marsha J. Pechman. (ES) (Entered: 08/13/2008)
78 Joint MOTION preliminary approval of proposed settlement agreement and class notice (with proposed order) by Defendants Michael Mukasey, Michael Chertoff, Emilio Gonzalez, Ann Corsano, Julia Harrison, Robert Mueller, III, United States of America. (Attachments: # 1 Exhibit 1 (Proposed Settlement Agreement, With Exhibits)) Noting Date 8/13/2008 (Safavi, Nancy) (Entered: 08/13/2008)
79 ORDER FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT AND APPROVAL OF NOTICE OF SETTLEMENT granting 78 Motion ; fairness hearing set for 9am on 8/25/08 by Judge Marsha J. Pechman.(RS) (Entered: 08/15/2008)
***Motion terminated: 39 MOTION for Partial Summary Judgment filed by Roshanak Roshandel, Zahra Abedin, Mohammad Reza Aidinejad, Vafa Ghazi−Moghaddam, Ahmad Alkabra, Lin Huang, Hawo Ahmed. Motion terminated after Court signed proposed order granting final approval of settlement and proposed order of remand. (ADO) (Entered: 08/25/2008)
80 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman− Dep Clerk: Eileen Scollard; Pla Counsel: Margarita Latsinova, et al; Def Counsel: Nancy Safavi, et al; CR: Susan Zielie; Time of Hearing: 9:00 a.m.; Motion Hearing held on 8/25/08 re 75 Joint MOTION preliminary approval of proposed settlement agreement and proposed class notice filed by Ann Corsano, Robert Mueller, III, Michael Chertoff, Michael Mukasey, Julia Harrison, Emilio Gonzalez, United States of America, 78 Joint MOTION preliminary approval of proposed settlement agreement and class notice (with proposed order)Joint MOTION preliminary approval of proposed settlement agreement and class notice (with proposed order) filed by Ann Corsano, Robert Mueller, III, Michael Chertoff, Michael Mukasey, Julia Harrison, Emilio Gonzalez, United States of America. Counsel state there are no objections to the settlement. Court signs Order Granting Final Approval of Settlement Agreement and Order Granting Class−Wide Remand. (ES) (Entered: 08/25/2008)
81 ORDER GRANTING CLASS−WIDE REMAND re 78 Joint MOTION preliminary approval of proposed settlement agreement and class notice (with proposed order filed by Ann Corsano, Robert Mueller, III, Michael Chertoff, Michael Mukasey, Julia Harrison, Emilio Gonzalez, United States of America by Judge Marsha J. Pechman. (MD) (Entered: 08/26/2008)

Case: 2:07-cv-01739-MJP As of: 07/03/2012 08:03 AM PDT 14 of 14

08/25/2008
09/11/2008 09/11/2008 09/16/2008 09/18/2008 10/14/2008
10/17/2008 10/21/2008 11/18/2008
11/20/2008 12/08/2008

82 ORDER GRANTING FINAL APPROVAL OF SETTLEMENT AGREEMENT re 78 Joint MOTION preliminary approval of proposed settlement agreement and class notice (with proposed order filed by Ann Corsano, Robert Mueller, III, Michael Chertoff, Michael Mukasey, Julia Harrison, Emilio Gonzalez, United States of America by Judge Marsha J. Pechman. (MD) (Entered: 08/26/2008)
83 Joint Stipulated MOTION and (Proposed) Order Re: Class Notice to Additional Class Members by Defendants Michael Mukasey, Michael Chertoff, Emilio Gonzalez, Ann Corsano, Julia Harrison, Robert Mueller, III, United States of America. Noting Date 9/11/2008 (Safavi, Nancy) (Entered: 09/11/2008)
84 ORDER RE CLASS NOTICE TO ADDITIONAL CLASS MEMBERS granting 83 Stipulated Motion by Judge Marsha J. Pechman.(RS) (Entered: 09/11/2008)
85 STIPULATION AND PROPOSED ORDER RE CLASS NOTICE TO ADDITIONAL CLASS MEMBER by parties. (Cohen, Rebecca) (Entered: 09/16/2008)
86 SECOND STIPULATION AND ORDER re: class notice to additional class member re 85 Stipulation filed by Ann Corsano, Robert Mueller, III, Michael Chertoff, Michael Mukasey, Julia Harrison, Emilio Gonzalez, United States of America by Judge Marsha J. Pechman. (MD) (Entered: 09/19/2008)
87 NOTICE OF WITHDRAWAL AND SUBSTITUTION OF COUNSEL on behalf of Defendants Michael Mukasey, Michael Chertoff, Emilio Gonzalez, Ann Corsano, Julia Harrison, Robert Mueller, III, United States of America. Priscilla To−Yin Chan is substituted as counsel for Defendants. Attorney Rebecca Shapiro Cohen terminated. (Chan, Priscilla) (Entered: 10/14/2008)
88 Third Stipulated MOTION and Proposed Order Re: Class Notice to Additional Class Member by Defendants Michael Mukasey, Michael Chertoff, Emilio Gonzalez, Ann Corsano, Julia Harrison, Robert Mueller, III, United States of America. Noting Date 10/17/2008 (Safavi, Nancy) (Entered: 10/17/2008)
89 THIRD JOINT STIPULATION AND ORDER granting 88 Stipulated Motion re: class notice to additional class member by Judge Marsha J. Pechman.(MD) (Entered: 10/22/2008)
90 ORDER REQUESTING A JOINT STATUS REPORT − Parties are ORDERED TO FILE A JOINT STATUS REPORT updating the Court on (1) the status of the settlement and (2) a proposed timeline for termination of this case. Parties shall file the report within 10 days of this order, by Judge Marsha J. Pechman. (MD) (Entered: 11/18/2008)
91 JOINT STATUS REPORT signed by all parties estimated Trial Days: n/a.. (Safavi, Nancy) (Entered: 11/20/2008)
92 MINUTE ORDER − On November 20, 2008, the parties in the above captioned matter filed a joint status report informing the Court that the settlement has been effectuated. Because the Settlement Agreement has been terminated, there are no further issues remaining before the Court. The Court therefore dismisses this matter by Judge Marsha J. Pechman. (MD) (Entered: 12/08/2008)


[CONTENT] October 29, 2007 | ACLU | Washington | the Northwest Immigrant Rights Project | the U.S. District Court | the Western District | the United States | over two years | the U.S. Bureau of Citizenship and Immigration Services | CIS | FBI ||| FBI | 5 | 701 ||| Court | 8 |||  ||| the Western District | Washington | CIS | 120 days ||| April 25, 2008 | the District Court | Marsha J. Pechman ||| 554 ||| 2d 1194 | W.D. Wash. 2008 ||| Court | June 3 ||| cv-01739 | 2008 | 2275558 | W.D. Wash. June 3, 2008 ||| January 8, 2008 | CIS ||| Pechman | May 5 ||| cv-01739 | 2008 | 1969646 | 2008 | U.S. ||| W.D. Wash. | May 5, 2008 ||| May 29, 2008 | 8 | § 1447(b ||| Court | August 11 ||| Court ||| 185,000 ||| Court | August 25, 2008 | CIS ||| November 20, 2008 [SUMMARY] On October 29, 2007, attorneys with the ACLU of Washington, the Northwest Immigrant Rights Project and private counsel filed a class action suit in the U.S. District Court for the Western District of Washington on behalf of lawful permanent residents of the United States whose naturalization applications had been pending for over two years with the U.S. Bureau of Citizenship and Immigration Services ("CIS"), awaiting the results of a FBI "name check."   Plaintiffs asserted that the unreasonable delays caused by the FBI "name check" process violated the Administration Procedure Act, 5 U.S.C. § 701, et seq.  Plaintiffs requested that the Court grant plaintiffs' naturalization applications pursuant to 8 U.S.C. § 1447(b), or in the alternative, compel the government to render decisions on them.  Plaintiffs sought additional declaratory and injunctive relief, as well as class certification.  

Plaintiffs proposed certification of a class consisting of all persons residing in the Western District of Washington who have submitted naturalization applications to CIS and whose naturalization applications are not adjudicated within 120 days of the date of their initial exam due to pendency of a  "name check."

On April 25, 2008, the District Court (Judge Marsha J. Pechman) certified the proposed class. <i>Roshandel v. Chertoff</i>, 554 F. Supp. 2d 1194 (W.D. Wash. 2008). The Court granted a joint motion by the parties to amend the class definition on June 3, clarifying the class's temporal and geographic scope. <i>Roshandel v. Chertoff</i>, No. 2:07-cv-01739, 2008 WL 2275558 (W.D. Wash. June 3, 2008).

Meanwhile, on January 8, 2008, the defendants had filed a motion to dismiss or remand to CIS for adjudication. The Court (Judge Pechman) denied this motion on May 5, striking some aspects of the motion to dismiss as outside of the complaint, finding the others to be without merit, and finding the arguments for remand to be inapplicable in light of class certification and the addition of more named plaintiffs to the amended complaint. <i>Roshandel v. Chertoff</i>, No. 2:07-cv-01739, 2008 WL 1969646, 2008 U.S. Dist. LEXIS 90899 (W.D. Wash. May 5, 2008). 

On May 29, 2008, the plaintiffs filed a motion for partial summary judgment on the issue of the class members' right to a judicial determination of application for naturalization pursuant to 8 U.S.C. § 1447(b). The Court never ruled on the motion, however, as the parties came to a settlement on August 11. The agreement set out a timeline for adjudication of class members' applications and subsequent naturalization proceedings, and gave the Court continued jurisdiction to enforce its terms. It also required defendants to pay plaintiffs' counsel $185,000 in fees and costs. 

The Court approved the settlement on August 25, 2008, and remanded to CIS to adjudicate the class members' claims. By November 20, 2008, all claims had been adjudicated, and thus the settlement agreement was terminated and the case was dismissed.