Roshandel v. ChertoffRoshandel v. Chertoff
ORDER GRANTING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
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. ¶¶ 11, 16, 21, 26, 29, and 34.) Plaintiffs allege that they have met *1199 all legal requirements for naturalization. (Comply 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 §§ 1428,1427. 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,
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.” (Comply 40.) According to the complaint, *1200 a 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. (ComplJ 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. (Comply 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 notiee-and-comment 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,
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,
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. (Comply 3.) 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 are unable to participate in civic society. The inability to vote 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 campaigns, attending political functions or providing monetary donations, and he or she may do so freely.
(Defs.’ Opp. at 8.) This suggestion that Plaintiffs should be resigned to participate vicariously in civic society is shocking, offensive, and wrong. It echoes the sentiments of those who challenged women’s suffrage, suggesting that women should be content to participate in the political process vicariously through their husbands’ votes.
We might as well be dogs baying the moon as petitioners without the right to vote!
Susan B. Anthony, speech on November 16, 1895 (as quoted in The Life and Work of Susan B. Anthony, ch. 44, by Ida Hust-ed Harper (1898) (reprinted in The Columbia World of Quotation (Columbia University Press, 1996))), available at www. bartleby.com/br.66.html (last visited April 25, 2008).
The Government’s argument also flies in the face of the Supreme Court’s repeated conclusion that the right to vote is the most basic and fundamental of our constitutionally protected rights: “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.”
Wesber-ry v. Sanders,
Rightfully, the Government does not even attempt to argue that the inability to serve on juries does not cause harm.
See Powers v. Ohio,
Finally, in a case such as this one, where class plaintiffs seek prospective injunctive relief, they must also demonstrate that they are realistically threatened by a repetition of the alleged violation.
Armstrong,
Here, the existence of a policy and practice of delay in naturalization applications due to pending name checks is not reasonably in dispute. 3 Plaintiffs, for their part, have alleged delay-based injuries stemming directly from this name check requirement, including their inability to vote and to serve on juries, their inability to travel abroad without fear of being denied re-entry into the United States, and ineligibility for jobs for which they are qualified. (Comply 3.) Thus, the Court concludes that the existence of the name check policy within USCIS means that unnamed and future class members will face contested delays in the future, be it before the completion of the naturalization interview or after. Plaintiffs have standing to bring their class claims.
II. Mootness
After Plaintiffs moved for class certification, the FBI completed the name checks of the four named plaintiffs and USCIS announced that it was ready to immediately adjudicate their naturalization applications. Defendants then opposed class certification, in part, on the grounds that Plaintiffs claims were moot. Plaintiffs have since filed an amended complaint (Dkt. No. 21) adding three additional named plaintiffs whose name checks have not been completed.
4
Because three of the named plaintiffs’ claims present live controversies, their claims are not moot, and the modification in class representation has no effect on the viability of the class as a whole.
See Swisher v. Brady,
III. Class Certification Standard
Class actions are governed by Federal Rule of Civil Procedure 23. The
*1203
party seeking class certification bears the burden of demonstrating that he or she has met all four requirements in Rule 23(a) and at least one of the requirements of Rule 23(b).
Zinser v. Accufix Research Inst, Inc.,
[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 corresponding declaratory relief with respect to the class as a whole.
Fed.R.Civ.P. 23(b)(2).
IV. Rule 23(a)
The Government argues that Plaintiffs have not shown commonality, typicality, or adequacy of representation. The Government does not dispute that the class as defined is so numerous that joinder is impracticable.
1. Commonality and Typicality
Rule 23(a)(2) requires that there be “questions of law or fact common to the class.” “ ‘All questions of fact and law need not be common to satisfy the rule. The existence of shared legal issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal remedies within the class.’ ”
Staton v. Boeing,
Defendants concede that there are “some common issues of law and fact,” but suggest that, because “individual issues predominate” in the inquiry into whether adjudication delay is reasonable and in the naturalization decision itself, class treatment is improper. (Opp. Mot. at 14-15.) This is not an appropriate factor to consider on a motion for 23(b)(2) certification: “Although common issues must predominate for class certification under Rule 23(b) (3), no such requirement exists under 23(b)(2).”
Walters v. Reno,
Defendants also argue that the time taken to complete background checks is “reasonable” and that the FBI name check is not the sole reason for delay. However, the reasonableness and legality of Defendants’ policies and practices are not matters for the Court to consider on a motion for class certification.
See Eisen v. Carlisle,
In regards to the typicality element, “a plaintiffs claims are typical if they arise from the same event or practice or course of conduct that gives rise to the claims of other class members and are based on the same legal or remedial theory.” 1 Alba Conte
&
Herbert Newberg,
Newberg on Class Actions
§ 3:19, at 401 (4th ed.2002);
see also Alpern v. UtiliCorp United, Inc.,
2. Adequacy
To satisfy the adequacy requirement, plaintiffs must show that their interests are not antagonistic to those of the class and that they are able to prosecute the action vigorously through qualified and competent counsel.
Linney v. Cellular Alaska P’ship,
The Court recognizes, however, that if certification is granted, the Court’s exclusive jurisdiction over section 1447(b) petitions will sweep up and place on hold all pending individual naturalization applications falling within the proposed class, including those whose name checks are completed during the pendency of this litigation.
See Hovsepian,
V. Rule 23(b)(2)
Rule 23(b)(2) applies when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole[.]” Fed.R.Civ.P. 23(b)(2). The rule was “intended to reach situations where a party has taken action or refused to take action with respect to a class, and final relief of an injunctive nature or of a corresponding nature, settling the legality of the behavior with respect to the class as a whole, is appropriate.” Fed.R.Civ.P. 23, Comment to Subdivision (b)(2).
At least one other district court has certified a Rule 23(b)(2) class in an immigration case challenging the government’s policies and practices of delay.
See Santillan v. Ashcroft,
No. C 04-2686 MHP,
The Government argues that the class should not be certified because Plaintiffs’ request for section 1447(b) relief in the form of a class-wide remand to USCIS is “impracticable,” “insurmountable,” and “would cause further delays in processing other applications, such as those for adjustment of status.” (Defs.’ Opp. Mot. at 3-4.) The Court recognizes that it may be the first district court to certify a class under section 1447(b). 5 However, the Government’s argument confuses the question of appropriate remedy with the question of *1206 the best procedural tool for resolving common questions of law. Nothing in section 1447(b), or common sense, precludes resolving Plaintiffs’ section 1447(b) or APA claims on a class-wide basis.
Conclusion
The Court concludes that the requirements under Rule 23(a) and (b)(2) are met and class certification is appropriate. It is hereby ORDERED that:
1. The Plaintiffs’ motion for class certification is GRANTED.
2. The Court therefore CERTIFIES 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 USCIS 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.”
3. The named class representatives are Ahmad Alkabra, Mohammad Reza Aidinejad, and Zahra Abedin.
4. The counsel of named plaintiffs is counsel for the class.
5. Notice and an opportunity to opt-out shall be provided to the plaintiff class.
It is further ordered that counsel shall meet and confer and submit a proposed class notice in compliance with this order within fifteen (15) days of the date of this order.
The clerk is directed to send copies of this order to all counsel of record.
Notes
. 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 background investigations are complete before conducting an applicant's examination interview.
Stepchuk v. Gonzales,
No. C06-570RSL,
. Plaintiffs’ claim under Count Four, Failure to Provide Notice of Remedies, is applicable only to a proposed subclass. Plaintiffs do not ask the subclass to be certified at this time.
. In the last year, approximately 31 claims against USCIS for delayed naturalization applications due to a pending name check heard before this Judge alone.
See e.g., Abo Ghanim
v.
Gonzales,
No. C07-0594MJP,
. 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 additional material does not ripen until May 9, 2008, the Court has not yet ruled on whether to consider the additional material and so does not consider it here.
. It appears that no district court has yet certified such a class; and, in many cases Plaintiffs have not sought certification under section 1447(b).
See Ahmadi v. Chertoff,
No. C07-03455WHA,