153 F.3d 1005 (9th Cir. 1998), 97-16495, Sze v. I.N.S.

Docket Nº:97-16495.
Citation:153 F.3d 1005
Party Name:Op. Serv. 9309 Robert Wong SZE, Wah Chung Kwan, Nam Dai Huynh; Ying Yeun Chiang; Danh Thi Thanh Nguyen; Yuk Ping Fong Tse; Chun Fung Yu-Seto; Alexander Ho Jeung Leung, Plaintiffs-Appellants, v. IMMIGRATION AND NATURALIZATION SERVICE; Janet Reno, Attorney General; Doris Meissner, I & NS Commissioner; Natalie Vedder, Director, Nebraska Service Center
Case Date:August 28, 1998
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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153 F.3d 1005 (9th Cir. 1998)

Op. Serv. 9309

Robert Wong SZE, Wah Chung Kwan, Nam Dai Huynh; Ying Yeun

Chiang; Danh Thi Thanh Nguyen; Yuk Ping Fong

Tse; Chun Fung Yu-Seto; Alexander Ho

Jeung Leung, Plaintiffs-Appellants,



Attorney General; Doris Meissner, I & NS Commissioner;

Natalie Vedder, Director, Nebraska Service Center, I & NS;

Thomas Schiltgen, District Director, I & NS; Lois C.

Chappell, Deputy Assistant District Director, Citizen

Branch, I & NS, San Francisco; Louis J. Freeh, Federal

Bureau of Investigation; Federal Bureau of Investigation;

Department of Justice, Defendants-Appellees.

No. 97-16495.

United States Court of Appeals, Ninth Circuit

August 28, 1998

Argued and Submitted June 10, 1998.

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[Copyrighted Material Omitted]

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Eugene C. Wong and Robert G. Ryan, San Francisco, CA, for plaintiffs-appellants.

William C. Erb, Office of Immigration Litigation, United States Department of Justice, Washington, DC, for defendants-appellees.

Appeal from the United States District Court for the Northern District of California; Samuel Conti, District Judge, Presiding. D.C. No. CV 97-00569-SC.

Before: BROWNING, GOODWIN and SCHROEDER, Circuit Judges.

GOODWIN, Circuit Judge:

Sze et al. ("Plaintiffs") appeal the grant of summary judgment in favor of the Immigration and Naturalization Service et al. ("Defendants"), and denial of Plaintiffs' motion for summary judgment. Plaintiffs seek a writ of mandamus ordering the Immigration and Naturalization Service ("INS") to grant or deny their naturalization applications, and also seek certification of a class of similarly situated applicants. We conclude that we lack Article III case or controversy jurisdiction to consider this appeal, inasmuch as Plaintiffs have all been naturalized, and accordingly, we dismiss this appeal as moot.


Plaintiffs applied for naturalization to become United States citizens and were examined by an INS officer, however, more than 120 days lapsed and the INS still had not made a determination to grant or deny their applications. Most of the delays were caused by a combination of fingerprint processing overloads at the Federal Bureau of Investigation ("FBI") and loss of applicant files by the INS. When Plaintiffs did not receive a determination within 120 days, they filed this action, relying on 8 U.S.C. § 1447(b), 1 as well as 8 C.F.R. §§ 335.3(a) and 312.5(b), 2 for their three causes of action: violation of administrative regulations; unreasonable delay under 5 U.S.C. § 706(1) of the Administrative Procedure Act ("APA"); and failure to act in accordance with law under 5 U.S.C. § 706(2)(a) of the APA. Plaintiffs sought class certification and a declaratory judgment that the INS had violated the above-mentioned code sections and federal regulations, by failing to make a determination to grant or deny Plaintiffs' and potential class members' naturalization applications within 120 days after their examinations. Plaintiffs also sought issuance of a writ in the nature of mandamus to compel the INS on remand to make a determination, under 8 U.S.C. § 1447(b), to grant or deny their naturalization applications within 120 days.

The naturalization process is generally divided into four stages. First, the applicant must submit completed application materials to the INS. The materials must contain, inter alia, a legible set of fingerprints, criminal background information, and information reflecting good moral character. 8 U.S.C. § 1445(a); 8 C.F.R. §§ 334.2, 316.4, and 316.10. Second, the INS conducts a background investigation, which includes a fingerprint check by the FBI. 8 U.S.C. § 1446(a); 8 C.F.R. § 335.1. Neither the statute nor the

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regulations prescribe a time period within which the investigation must be completed.

Prior to September 1996, the INS would wait at least 60 days for the FBI to report on the status of the fingerprint check. If no response was received, the INS would schedule an applicant for a naturalization interview ("the examination") on the assumption that the FBI had no criminal record on the applicant. In September 1996, the INS doubled the waiting period from 60 to 120 days. In November 1996, the INS further altered its procedure at this stage, by requiring a definitive response on the applicant's fingerprints from the FBI before scheduling the examination or the oath ceremony.

At the third stage, the applicant is interviewed by an INS officer who will, except in limited cases, either grant or deny the naturalization application within 120 days of the interview. 8 C.F.R. § 335.3(a). In the event that the INS fails to render a decision in 120 days, the applicant may request an individual hearing in the appropriate United States District Court. 8 U.S.C. § 1447(b); 8 C.F.R. § 310.5. That court may either determine the matter itself, or remand the case to the INS with instructions. Id. An individual whose application is denied may seek review of the denial. 8 U.S.C. § 1447(a); 8 C.F.R. §§ 336.1-.2, 336.9.

The final stage of processing involves scheduling the applicant for the oath ceremony. See 8 U.S.C. §§ 1421, 1448; 8 C.F.R. §§ 310.3, 337.

The district court granted summary judgment in favor of Defendants on all claims and denied Plaintiffs' motion for summary judgment. Having decided against Plaintiffs on the legal issues, the district court found that it "need not make a determination on plaintiffs' motion for class certification." The district court entered judgment on July 24, 1997, and Plaintiffs timely filed their notice of appeal on August 5, 1997.

During the pendency of this action in the district court, the INS naturalized some of the named plaintiffs. More were naturalized prior to Plaintiffs filing their opening brief on appeal, and the final two were naturalized on October 21, 1997, just prior to Defendants filing their responsive brief. A week earlier, on October 14, 1997, Defendants had filed with this court a motion to dismiss for lack of jurisdiction, which our court's Appellate Commissioner denied without prejudice. Pursuant to the Commissioner's decision, Defendants have renewed this argument before the panel.


Defendants contend that we lack jurisdiction to decide this appeal, inasmuch as the case has been mooted by the naturalization of the named plaintiffs, none of whom are alleging past or present injury from the INS's purported illegal action. Plaintiffs offer a number of arguments in response, some of which seek to preserve jurisdiction so that Plaintiffs can pursue class certification.

At the outset, Plaintiffs contend that one or another of the ordinary exceptions to the mootness doctrine applies, which would allow us to consider, on the merits, their appeal of the district court's ruling. Primarily, Plaintiffs argue that this is a case involving "voluntary cessation of allegedly illegal conduct" whereby a case does not become moot "unless there is no reasonable expectation that the wrong will be repeated." Public Utilities Comm'n of State of Cal. v. F.E.R.C., 100 F.3d 1451, 1460 (9th Cir.1996) (internal quotations omitted). For the exception to apply, however, the INS's voluntary cessation "must have arisen because of the litigation." Id.

According to Plaintiffs, the timing of the INS's decisions to naturalize the named plaintiffs indicates that the applications were approved because of this litigation. Further, Plaintiffs assert that the INS's actions on the cases of two potential plaintiffs occurred because Plaintiffs drew particular attention to these cases. However, it appears that the INS acted on these naturalization applications in due course, albeit...

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