Roshandel v. Chertoff, C07-1739MJP.

• Court: United States District Courts. 9th Circuit. United States District Court (Western District of Washington)
• Citation: 554 F.Supp.2d 1194
• Docket Number: No. C07-1739MJP.,C07-1739MJP.
• Parties: Roshanak ROSHANDEL; Vafa Ghazi-Moghaddam; Hawo Ahmed; Lin Huang; Ahmad Alkabra; Mohammad Reza Aidinejad, and Zahra Abedin, individually and on behalf of all others similarly situated, Plaintiffs, v. Michael CHERTOFF, Secretary, United States Department of Homeland Security, Emilio Gonzalez, Director, United States Citizenship and Immigration Services, Ann Corsano, Director, District 20, United States Citizenship and Immigration Services; Julia Harrison, Director, Seattle Field Office, United States Citizenship and Immigration Services; Michael B. Mukasey, Attorney General, United States Department of Justice; Robert Mueller III, Director, Federal Bureau of Investigation; and the United States of America, Defendants.
• Decision Date: 25 April 2008

554 F.Supp.2d 1194 Roshanak ROSHANDEL; Vafa Ghazi-Moghaddam; Hawo Ahmed; Lin Huang; Ahmad Alkabra; Mohammad Reza Aidinejad, and Zahra Abedin, individually and on behalf of all others similarly situated, Plaintiffs,
v.
Michael CHERTOFF, Secretary, United States Department of Homeland Security, Emilio Gonzalez, Director, United States Citizenship and Immigration Services, Ann Corsano, Director, District 20, United States Citizenship and Immigration Services; Julia Harrison, Director, Seattle Field Office, United States Citizenship and Immigration Services; Michael B. Mukasey, Attorney General, United States Department of Justice; Robert Mueller III, Director, Federal Bureau of Investigation; and the United States of America, Defendants. No. C07-1739MJP. United States District Court, W.D. Washington, at Seattle. April 25, 2008.

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Aaron H. Caplan, American Civil Liberties Union of WA, Seattle, WA, Alfred Arthur Day, Seattle, WA, Christopher Strawn, Northwest Immigrant Rights Project (SEA), Seattle, WA, Margarita V. Latsinova, Stoel Rives (WA), Seattle, WA, Matt Adams, Northwest Immigrant Rights Project (SEA), Seattle, WA, Sarah A. Dunne, ACLU of Washington, Seattle, WA, for Plaintiffs.

Nancy Safavi, Washington, DC, Rebecca Shapiro Cohen, US Attorney's Office (SEA), Seattle, WA, for Defendants.

ORDER GRANTING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

MARSHA J. PECHMAN, District Judge.

This matter comes before the Court on Plaintiffs' motion for class certification. (Dkt. No. 4.) Defendants filed a response to the motion (Dkt. No. 15) and Plaintiffs filed a reply (Dkt. No. 16). Having considered the parties' briefs and all documents submitted in support, and having heard oral argument on the issues, the Court GRANTS Plaintiffs' motion for class certification.

Background

This action involves delayed naturalization applications allegedly due to a pending "name check" with the Federal Bureau of Investigation ("FBI"). Plaintiffs are lawful permanent residents of the United States who have applied with the United States Citizenship and Immigration Services ("USCIS") to be naturalized as United States citizens. Defendants are Michael Chertoff, Secretary of the United States Department of Homeland Security; Emilio Gonzalez, Director of USCIS; Ann Corsano, Director of USCIS District 20; Julia Harrison, Director of the USCIS Seattle Field Office; Michael B. Mukasey, United States Attorney General; Robert Mueller III, Director of the FBI; and the United States of America.

Each Plaintiffs application has been pending for at least two (2) years since passing his or her naturalization examination. (Dkt. No. 21, First Amended Complaint [hereinafter "Compl."] 112.) Plaintiffs Roshandel, Ghazi-Moghaddam, Ahmed, Huang, Alkabra, and Abedin were each told by USCIS that their applications were not yet complete due to a pending name check. (Id. Ill 11, 16, 21, 26, 29, and 34.) Plaintiffs allege that they have met

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all legal requirements for naturalization. (Compl. ¶ 2.)

I. The Naturalization Process

Persons seeking naturalization must submit an application to USCIS, the agency responsible for adjudicating naturalization applications. See 8 U.S.C. § 1445; 8 C.F.R. § 100.2(a)-(f); 6 U.S.C. § 291 (abolishing the INS). A naturalization applicant must meet certain requirements under the Immigration and Naturalization Act ("INA"), including an understanding of the English language and history of the United States, and good moral character. 8 U.S.C §§ 1423,1427. USCIS is required to grant the application if the applicant meets all statutory requirements for naturalization. 8 C.F.R. § 335.3(a).

Once an application is submitted, USCIS conducts an investigation of each naturalization applicant. See 8 U.S.C. § 1446(a); 8 C.F.R. § 335.1. Under USCIS regulations, the investigation includes a "full criminal background check" performed by the FBI. 8 C.F.R. § 335.2(b). USCIS cannot adjudicate any naturalization application without a "definitive response" from the FBI that a full criminal background check has been completed. Id. USCIS also conducts a naturalization interview, at which an applicant meets with a USCIS officer who asks questions and takes testimony. 8 C.F.R. §§ 335.1, 335.2(a). At the interview, the USCIS officer is required to inform the applicant of the remedies available to the applicant under section 1447(b). 8 U.S.C. § 1446(b). Under USCIS regulations, applicants are supposed to be interviewed only after the FBI has completed its full background check. 8 C.F.R. § 335.2(b).¹

The regulations require that USCIS make a decision to grant or deny the application either at the initial examination or within 120 days of the date of the initial examination. See 8 C.F.R. § 335.3(a) ("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 examination of the applicant for naturalization under § 335.2."). If USCIS fails to render a decision on a naturalization application within 120 days of the applicant's naturalization examination, the applicant may seek district court adjudication of his or her application. 8 U.S.C. § 1447(b). The court may either determine the application, or remand the application to the agency with instructions. Id. Once a plaintiff has filed a petition under section 1447(b), the district court assumes exclusive jurisdiction over the naturalization application. United States v. Hovsepian, 359 F.3d 1144, 1161 (9th Cir.2004).

II. The Name Check Requirement

Plaintiffs allege that in 2002, without promulgating any regulations and without statutory authorization, USCIS "dramatically altered the naturalization process by requiring that all applicants pass a `name check' by the FBI before final approval." (Compl.¶ 40.) According to the complaint,

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La name check is a search of FBI records and other records the FBI has access to based on the name of the applicant. (Id.) Plaintiffs allege that the name check is implemented in such a manner that an applicant may be erroneously identified as a "person of interest" to the FBI, thereby delaying adjudication of the naturalization application, even though the applicant has committed no crimes and is not a suspect, and even though the name check revealed no other information bearing on eligibility for naturalization. (Compl. ¶ 50.) Plaintiffs further allege that USCIS will not grant naturalization applications until it receives a completed background check from the FBI, and that neither USCIS nor the FBI has imposed any timeline for completion of the name checks. (Compl. ¶ 52.)

III. The Class Action Complaint

Plaintiffs' complaint states four causes of action: (1) right to judicial determination of Plaintiffs' naturalization applications pursuant to 8 U.S.C. § 1447(b); (2) unreasonable delay in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 555(b); (3) failure to follow notice-andcomment requirements of the APA, 5 U.S.C. § 553; and (4) failure to provide notice of remedies as required by 8 U.S.C. § 1446(b).² Plaintiffs now move to certify a class comprised of the following members:

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 naturalization applications have not been determined within 120 days of the date of their initial examination due to the pendency of a "name check."

Discussion

I. Standing

Standing is a jurisdictional element that must be satisfied prior to class certification. Lee v. State of Oregon, 107 F.3d 1382, 1390 (9th Cir.1997). In order to assert claims on behalf of a class, "a named plaintiff must have personally sustained or be in immediate danger of sustaining `some direct injury as a result of the challenged statute or official conduct.'" Armstrong v. Davis, 275 F.3d 849, 860 (9th Cir.2001) (quoting O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)). "The harm suffered by a plaintiff must constitute `actual injury.'" Id. (quoting Lewis v. Casey, 518 U.S. 343, 348-49, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996)).

The Government argues that Plaintiffs fail to demonstrate actual harm because there is no right to naturalization until all the statutory requirements are met. Not only does this argument assume that the name check is a statutory requirement, which is itself at issue in this litigation, but it ignores the fact that under 8 C.F.R. § 335.3(a) and 8 U.S.C. § 1447(b), Plaintiffs are entitled to a naturalization decision by USCIS within 120 days of their naturalization examination. Congress may enact statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute. See Warth v. Seldin, 422 U.S. 490, 514, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Thus, even assuming that Plaintiffs do not have a right to naturalization, that does not mean they do not have a right to a prompt adjudication of their naturalization application. Plaintiffs, each deprived a naturalization decision within 120 days of their interview, are

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

Plaintiffs also allege injuries beyond the delay itself, injuries that are a direct result of the challenged name check policy. Plaintiffs state in their complaint that they are unable to vote or serve on juries, they are unable to travel abroad without fear of being denied re-entry into the United States, and they are ineligible for jobs for which they are qualified. (Compl.¶13.) In an ill-considered argument, the Government suggests that the inability to vote is not a harm sufficient to confer standing:

With respect to voting, simply because Plaintiffs are not United States citizens does not mean that they...