Santillan v. Gonzales

• Decision Date: 24 August 2005
• Docket Number: No. C 04-2686 MHP.,C 04-2686 MHP.
• Citation: 388 F.Supp.2d 1065
• Court: U.S. District Court — Northern District of California
• Parties: Maria SANTILLAN, et al., on behalf of themselves and others similarly situated, Plaintiffs, v. Alberto R. GONZALES, Attorney General of the United States; Michael Chertoff, Secretary of the Department of Homeland Security; The United States Citizenship and Immigration Services (USCIS); Eduardo Aguirre, Jr., USCIS Director; David Still, USCIS San Francisco District Director, Defendants.

388 F.Supp.2d 1065

Maria SANTILLAN, et al., on behalf of themselves and others similarly situated, Plaintiffs, v. Alberto R. GONZALES, Attorney General of the United States; Michael Chertoff, Secretary of the Department of Homeland Security; The United States Citizenship and Immigration Services (USCIS); Eduardo Aguirre, Jr., USCIS Director; David Still, USCIS San Francisco District Director, Defendants.

No. C 04-2686 MHP.

United States District Court, N.D. California.

August 24, 2005.

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COPYRIGHT MATERIAL OMITTED

David Anton Armendariz, Javier Nyrup Maldonado, Lawyers' Committee for Civil Rights Under Law of Texas, San Antonio, TX, John C. Dwyer, Maureen P. Alger, Michelle S. Rhyu, Reuben Ho-Yen Chen, Cooley Godward LLP, Palo Alto, CA, for Plaintiffs.

Edward A. Olsen, United States Attorney's Office, San Francisco, CA, Elizabeth J. Stevens, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM AND ORDER

PATEL, District Judge.

Plaintiffs Maria Santillan, et al. represent a class of persons who have been or will be granted lawful permanent resident status by the Justice Department's Executive Office of Immigration Review and to whom the United States Citizenship and Immigration Services has failed to issue evidence of status as a lawful permanent resident. Following this court's denial of defendants' motion to dismiss, plaintiffs have moved for summary judgment that defendants' failure to issue evidence of status violates the Administrative Procedure Act (hereinafter "APA") and the Due Process Clause of the Fifth Amendment. Defendants have cross-moved for summary judgment that the claims of certain class members are nonjusticiable, and that defendants' failure to issue evidence of status is lawful and reasonable. Having considered the arguments of the parties, and for the reasons set forth below, the court issues the following order.

BACKGROUND

Named plaintiffs Maria Santillan, et al., were granted the status of lawful permanent resident ("LPR") by Immigration Judges or by the Board of Immigration Appeals, constituent courts of the Justice Department's Executive Office of Immigration Review ("EOIR").¹ Following the EOIR's determination, plaintiffs sought documentation of their adjusted status as LPRs from their local United States Citizenship and Immigration Services ("USCIS") sub-office, through a process called Alien Documentation, Identification and Telecommunication ("ADIT") processing.²

Prior to September 11, 2001, plaintiffs would generally have been able to obtain temporary documentation of their adjusted status within a week of presenting a copy of the order issued by the EOIR to their local USCIS sub-office. Statement of Undisputed Facts (hereinafter "SUF") ¶ 17; see Chen Dec. Ex. I at 28:22-29:14. Beginning some time after September 11, 2001, the Department of Homeland Security ("DHS"), which oversees USCIS, changed the policy for applicants for documentation. Under the new policy, all applicants for documentation of adjusted status have been required to undergo background and security checks involving multiple federal agencies. SUF ¶ 24; see Aug. 9, 2004 Sposato Dec. ¶¶ 1-9. Until those checks are completed, the USCIS has not been permitted to issue any immigration benefit to plaintiffs, such as adjustment of status to lawful permanent residency or the issuance of temporary documentation verifying LPR status. SUF ¶ 23; see Aug. 9, 2004 Sposato Dec. ¶ ¶ 11-12.

Under these new procedures, persons granted LPR status waited from several months to over one year for the commencement of their ADIT processing, in addition to weeks or months for the completion of processing and the issuance of documentation verifying LPR status. SUF ¶ 32. As many as 12,539 persons adjudicated to be LPRs after October 1, 2000 may not have received documentation of status from USCIS. SUF ¶¶ 64-65. During the post-adjudication, pre-documentation period, some class members lost work and travel authorization due to the expiration of their former immigration status, the refusal of agencies to renew work authorizations due to the immigrants' adjustment to LPR status, and lack of documentation of their new LPR status. SUF ¶¶ 51-55, 67, 70, 96-98, 100.

On July 4, 2004, plaintiffs filed an action for declaratory and injunctive relief, seeking to compel defendant officials to issue LPRs evidence of their adjusted legal status "in a timely manner." On October 12, 2004, this court certified plaintiffs' claims as a class action. See Santillan v. Ashcroft, 2004 WL 2297990 (Oct. 12, 2004 N.D.Cal.) (Patel, J.).

On April 1, 2005 after class certification in this action, a new system of EOIR regulations went into effect which reorganized the procedures governing security and law enforcement investigations of putative class members in several ways. Most significantly, the new regulations repositioned the timing of security examinations of applicants, requiring those examinations to be completed before an alien's application for adjustment of status can be heard by an immigration judge, rather than after a grant of adjusted status. See generally 8 C.F.R. § 1003.47.

Specifically, the new regulations change the timing, notice, and allocation of responsibility for security checks. At the front end, at any hearing in which an alien files or expresses intent to file an application for relief that is subject to background checks, the "DHS shall notify the respondent of the need to provide biometrics and other biographical information and shall provide a biometrics notice and instructions to the respondent for such procedures." Id. § 1003.47(d). Immigration judges are instructed to account for security processing in scheduling hearings, and security checks must be conducted "as promptly as is practicable (considering, among other things, increased demands placed upon such investigations)." Id. § 1003.47(e). Where investigations are incomplete by the time of the hearing, the immigration judge may grant a continuance or hear the case on the merits; however, the judge may not grant an application for immigration relief if the examinations are incomplete or not current. Id. § 1003.47(f)-(g). See also Id. § 1003.1 (instructing that the Board of Immigration Appeals shall not issue a decision affirming or granting an alien an immigration status, benefit, or relief that requires completion of security investigations if such investigations have not been completed during the proceedings, the results of prior investigations are no longer current, or investigations have uncovered any information bearing on the merits of the alien's application). Where an investigation is complete and an immigration judge has granted LPR status, the "decision granting such relief shall include advice that the respondent will need to contact an appropriate office of DHS." Id. § 1003.47(i). The new regulatory scheme affects only EOIR processes, with no instructions or guidelines for USCIS issuance of documentation.

Defendants moved to dismiss in light of the new regulations, arguing that the claims of plaintiffs adjusted by the EOIR after April 1, 2005 ("post-April 1 plaintiffs") are either moot or not yet ripe, and that the class of plaintiffs adjusted by the EOIR before April 1, 2005 ("pre-April 1 plaintiffs") is rapidly shrinking and will disappear without the intervention of this court. On July 1, 2005 this court denied defendants' motion. See Santillan v. Ashcroft, No. C 04-2686 (N.D.Cal. July 1, 2005) (Patel, J.). In denying defendants' motion this court noted that the ripeness requirement does not provide the proper framework in which to analyze the justiciability of the claims of the post-April 1 plaintiffs. Rather, the proper question was whether the change in regulations on April 1 rendered the claims of certain class members moot. This court concluded that the post-April 1 plaintiffs are likely to experience delays related to the same internal communication difficulties and other bureaucratic inefficiencies that have affected the pre-April 1 plaintiffs, and that their claims are therefore not moot. Finally, this court noted that the April 1, 2005 change in regulations might require dividing the existing class into two subclasses.

In the Statement of Undisputed Facts accompanying these motions for summary judgment, the parties list the following facts relevant to the post-April 1 plaintiffs. First, some of the delay experienced by pre-April 1 plaintiffs is attributable to misrouted files, inefficiency, and human error. SUF ¶ 43. USCIS makes use of the same types of files and procedures in processing the applications of at least some post-April 1 plaintiffs. SUF ¶ 44. USCIS does not ensure that the applications of post-April 1 plaintiffs are processed within a prescribed period of time. SUF ¶ 45. Nor does USCIS track the number of times a post-April 1 plaintiff makes requests for documentation. SUF ¶¶ 40-42. Finally, the security checks that were previously done following determination of status, and on which USCIS places much of the blame for delays experienced by pre-April 1 plaintiffs, usually take no more than 48 hours to complete. SUF ¶¶ 27-28.

Based on the continued failure of pre-April 1 class members to obtain documentation and evidence that administrative delays will persist for post-April 1 class members, plaintiffs move for summary judgment that defendants are improperly withholding permanent documentation of status, and that Defendants' decision to cease providing temporary documentation was arbitrary and capricious. Defendants move for summary judgment that the DHS is not in violation of its duty to provide documentation, and that the decision to cease issuing temporary documentation was rational. Defendants also argue in the alternative, as in their earlier motion to dismiss, that the claims of the post-April 1 class members are not yet ripe.

LEGAL STANDARD

I. Summary Judgment

Summary judgment...