Free Motion for Summary Judgment - District Court of California - California

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1 JOSEPH P. RUSSONIELLO, CSBN 44332 United States Attorney 2 JOANN M. SWANSON, CSBN 88143 Assistant United States Attorney 3 Chief, Civil Division ILA C. DEISS, NY SBN 3052909 4 Assistant United States Attorney 5 6 7 Attorneys for Defendant 8 9 10 11 12 ANTONIO TORRES-FELIX, ROSALINDA TORRES, and 13 EDGAR ANTONIO TORRES, 14 15 v. Plaintiffs, UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. C 07-4827 SI DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT; and DECLARATION OF CATARINA ROBLES 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102 Telephone: (415) 436-7124 FAX: (415) 436-7169

16 ROSEMARY MELVILLE, District Director, United States Citizenship and Immigration 17 Services; 18 19 20 21 Defendant.

Date: March 14, 2008 Time: 9:00 a.m. Courtroom: 10, 19th Floor

I. INTRODUCTION Plaintiffs ask this Court to issue a writ of mandamus, compelling the Defendants to make a

22 determination on their applications for adjustment of status. They also ask the Court to find that 23 Defendants have violated the Administrative Procedure Act ("APA"), and to grant relief under the 24 Declaratory Judgment Act. Plaintiffs' claims must fail. Plaintiff Rosalinda Torres' application 25 remains pending because her name check is not yet complete. The facts are undisputed, and 26 Defendants are entitled to judgment as a matter of law. Accordingly, Defendants respectfully ask 27 28 Defendants' Cross-Motion for Summary Judgment C07-4827 SI 1

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1 this Court to grant their motion for summary judgment.1 2 3 4 /// II. BACKGROUND

On June 2, 2004, Plaintiffs Rosalinda Torres and Edgar Antonio Torres each filed an

5 application to adjust status as permanent resident (Form I-485). See Declaration of Catarina 6 Robles (Robles Decl.) ¶ 17 (attached as Exh. A). Plaintiff is a beneficiary of an approved alien 7 relative petition (Form I-130) filed on her behalf by her husband, Antonio Torres-Felix. Id. 8 Plaintiff Edgar Antonio Torres' application was adjudicated on November 23, 2007. Plaintiff 9 Rosalinda Torres's application is ready to be adjudicated except for her pending background and 10 security check. Robles Decl. ¶ 17. Plaintiffs filed the instant Complaint on September 20, 2007. 11 12 13 III. GENERAL PRINCIPLES APPLICABLE TO THIS MOTION

A. LEGAL STANDARD Summary judgment is appropriate when the "pleadings, depositions, answers to interrogatories,

14 and admissions on file, together with the affidavits, if any, show that there is no genuine issue as 15 to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. 16 Civ. P. 56(c). An issue is genuine only if there is sufficient evidence for a reasonable fact finder to 17 find for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). 18 A fact is material if the fact may affect the outcome of the case. See Id. at 248. The Ninth Circuit 19 has declared that "[i]n considering a motion for summary judgment, the court may not weigh the 20 evidence or make credibility determinations, and is required to draw all inferences in a light most 21 favorable to the non-moving party." Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A 22 principal purpose of the summary judgment procedure is to identify and dispose of factually 23 unsupported claims. See Celotex Corp. v. Cattrett, 477 U.S. 317, 323-24 (1986). 24 25 26 27 28 Defendants are aware of this Court's decision in Xiao v. Gonzalez, Slip Copy, 2007 WL 2688464 (N.D.Cal., Sep. 10, 2007), but absent direction from the Ninth Circuit Court of Appeals, wish to preserve the arguments below for appeal. Defendants' Cross-Motion for Summary Judgment C07-4827 SI 2
1

B. ADJUSTMENT OF STATUS Section 245 of the Immigration and Nationality Act, codified at 8 U.S.C. § 1255, authorizes

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1 the Secretary of the Department of Homeland Security ("Secretary")2 to adjust to permanent 2 residence status certain aliens who have been admitted into the United States. Adjustment of 3 status is committed to the Secretary's discretion as a matter of law. Section 1255(a) expressly 4 provides: The status of an alien who was inspected and admitted or paroled into the United States . . . may be adjusted by the [Secretary], in his discretion and 6 under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence[.] 7 8 U.S.C. 1255(a) (emphasis added). Significantly, the statute does not set forth any time frame in 5 8 which a determination must be made on an application to adjust status. In addition, the regulations 9 setting forth the procedures for aliens to apply to adjust status do not set forth a time frame for 10 adjudication, and allow discretion in how to conduct the adjudication. See 8 C.F.R. § 245 et seq. 11 Before a decision is rendered on an alien's application to adjust status, U.S. Citizenship and

12 Immigration Services ("USCIS") conducts several forms of security and background checks to 13 ensure that the alien is eligible for the benefit sought and that he is not a risk to national security or 14 public safety. USCIS also conducts investigations into the bona fides of petitions and applications 15 that have been filed, in order to maintain the integrity of the application process and to ensure that 16 there is no fraud in the application process. See 8 U.S.C. § 1105(a) (authorizing "direct and 17 continuous liaison with the Directors of the Federal Bureau of Investigation [("FBI")] and the 18 Central Intelligence Agency and with other internal security officers of the Government for the 19 purpose of obtaining and exchanging information for use in enforcing the provisions of this chapter 20 in the interest of the internal and border security of the United States"). These checks currently 21 include extensive checks of various law enforcement databases, including the FBI. Id. 22 The FBI's name check process is quite complex. See Eldeeb v. Chertoff, et al., No. 07-cv-236-

23 T, 2007 WL 2209231, at *4 (M.D. Fla. July 30, 2007). Name checks are performed at the request of 24 a variety of organizations, including the federal judiciary, friendly foreign police and intelligence 25 26 On March 1, 2003, the Department of Homeland Security and its United States 27 Citizenship and Immigration Services assumed responsibility for the adjustment program. 6 28 U.S.C. § 271(b). Accordingly, the discretion formerly vested in the Attorney General is now vested in the Secretary of Homeland Security. 6 U.S.C. § 551(d). Defendants' Cross-Motion for Summary Judgment C07-4827 SI 3
2

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1 agencies, and state and local governments. Id. at *3. When the FBI conducts a name check, the 2 name is checked against the FBI's Universal Index, in a four-stage process. Id. at *3. Generally, 3 the FBI employs a first-in, first-served protocol. Id. at *4. However, when an applicant's name 4 check requires a review of numerous FBI records and files, the name check may require additional 5 time until all responsive records are located and reviewed. Id. USCIS determines which name 6 checks are to be expedited. See USCIS Clarifies Criteria to Expedite FBI Name Check (attached as 7 Exh. B). An expedited name check proceeds to the front of the queue, in front of others awaiting 8 processing. Eldeeb, 2007 WL 2209231, at *5. 9 The FBI processed more than 3.4 million name checks during fiscal year 2006. Id. at *3. The

10 FBI is working as expeditiously as possible to reduce the small percentage of immigration name 11 checks for which a backlog exists. This backlog results from the vast number of requests the FBI 12 receives from USCIS and other customers, as well as the requirement for enhanced security 13 measures existing since September 11, 2001. Id. at *5. A variety of factors play into processing 14 times, including "hits," common names, and expedited name checks. Id. at *4. 15 16 Judicial review under the APA, 5 U.S.C. § 701, et seq., is specifically precluded where "agency 17 action is committed to agency discretion by law." 5 U.S.C. § 701(a)(2). Agency action, as defined 18 under the APA, also includes "a failure to act." 5 U.S.C. § 551(13). Under 5 U.S.C. § 706(1), a 19 court may compel "agency action unlawfully withheld or unreasonably delayed." The elements of a 20 claim under § 706(1) are the existence of a discrete, ministerial duty; a delay in carrying out that 21 duty; and a determination that the delay was unlawful or unreasonable in light of prejudice to one of 22 the parties. Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004); Rockbridge v. 23 Lincoln, 449 F.2d 567, 569-73 (9th Cir. 1971). 24 The APA does not provide an independent jurisdictional basis. Califano v. Sanders, 430 U.S. 25 99, 107 (1977); Staacke v. U.S. Department of Labor, 841 F.2d 278, 282 (9th Cir. 1988). Rather, it 26 merely provides the standards for reviewing agency action once jurisdiction is otherwise 27 established. Staacke, 841 F.2d at 282. Similarly, the Declaratory Judgment Act, 28 U.S.C. § 2201 28 ("DJA"), does not provide an independent basis for jurisdiction; rather, it only expands the range of Defendants' Cross-Motion for Summary Judgment C07-4827 SI 4 C. RELIEF AVAILABLE UNDER THE ADMINISTRATIVE PROCEDURE ACT AND THE MANDAMUS ACT

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1 remedies available in federal courts. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72 2 (1950). 3 Mandamus is an extraordinary remedy. See Cheney v. United States District Court for the

4 District of Columbia, 542 U.S. 367, 392 (2004) (Stevens, J., concurring); Allied Chemical 5 Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980). The United States Supreme Court has stated that 6 "[t]he common law writ of mandamus is intended to provide a remedy for a plaintiff only if . . . the 7 defendant owes him a clear nondiscretionary duty." Heckler v. Ringer, 466 U.S. 602, 616 (1984). 8 The Ninth Circuit has explained that 9 10 11 Kildare v. Saenz, 325 F.3d 1078, 1084 (9th Cir. 2003). Thus, "`mandamus does not lie to review 12 the discretionary acts of officials.'" See Nova Stylings Inc. v. Ladd, 695 F.2d 1179, 1180 (9th Cir. 13 1983), quoting Nelson v. Kleppe, 457 F. Supp. 5, 8 (D. Idaho 1976). 14 IV. ANALYSIS 15 A. RELIEF IS NOT AVAILABLE UNDER THE APA 16 1. 17 A case should be dismissed as moot when "there is no effective relief remaining for a court 18 to provide." GATX/Airlog Co. v. U.S. Dist. Court for Northern Dist. of California, 192 F.3d 19 1304, 1306 (9th Cir. 1999) (citation omitted); see also, State of Nev., ex rel. Nevada State Bd. of 20 Agriculture v. United States, 699 F.2d 486, 487 (9th Cir. 1983) (following the "general rule that 21 when actions complained of have been completed or terminated, declaratory judgment and 22 injunctive actions are precluded by the doctrine of mootness"). Plaintiff Torres' application was 23 granted in November 2007 and his claims are moot. 24 2. 25 26 Compelling Action By USCIS Would Necessarily Interfere With the FBI's Discretion Plaintiff Edgar Antonio Torres' Complaint if Moot [m]andamus . . . is available to compel a federal official to perform a duty only if: (1) the individual's claim is clear and certain; (2) the official's duty is nondiscretionary, ministerial, and so plainly prescribed as to be free from doubt, and (3) no other adequate remedy is available.

Numerous courts have recognized the FBI's discretion "in determining the timing for

27 conducting the many name check requests that it receives and the manner in which to conduct 28 those checks." Yan v. Mueller, No. H-07-0313, 2007 WL 1521732, at *6 (S.D. Tex. Defendants' Cross-Motion for Summary Judgment C07-4827 SI 5

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1 May 24, 2007); see also Takkallapalli v. Chertoff, 487 F. Supp. 2d 1094, 1099 (W.D. Mo. 2007) 2 (stating that where delay was due to incomplete name check, "Defendants' conduct [was] 3 sufficient to avoid judicial intervention."); Li v. Chertoff, 482 F. Supp. 2d 1172, 1179 (S.D. Cal. 4 2007) (recognizing that USCIS has wide discretion "in matters pertaining to the pace of the 5 adjudication of I-485 applications."); Sozanski v. Chertoff, et al., No. 06-CV-0993 N, 2006 WL 6 4516968, at *1 (N.D. Tex. Dec. 11, 2006) (holding that federal district courts lack jurisdiction to 7 compel the FBI to perform name checks in adjustment of status cases). Compelling USCIS to 8 process Plaintiff Rosalinda Torres's application in a certain time frame would amount to 9 compelling the FBI to exercise its discretion in a certain manner. Accordingly, Plaintiff 10 essentially seeks to compel a discretionary action, and relief is unavailable under the APA. 11 12 3. The Delay is Reasonable

Even if the actions at issue were not discretionary, Plaintiff has failed to that the delay at issue

13 here is unreasonable. To determine whether the delay is egregious, such that relief under the APA 14 is warranted, several circuits have adopted the six-part test first articulated in Telecomm. 15 Research and Action Ctr. v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984) ("TRAC"). 16 17 a. A Rule of Reason Governs the Agency Decisions at Issue

The first TRAC factor requires an agency to govern decisions with a rule of reason. TRAC,

18 750 F.2d at 80. Given the large volume of petitions and applications requiring adjudication, the 19 extensive background check that is required for national security and public safety, and the limited 20 resources available to it, the FBI is proceeding in an orderly fashion with the completion of name 21 checks in the order in which they are received. See Eldeeb v. Chertoff, No. 07cv236-T-17EAJ, 22 2007 WL 2209231, at *2 (M.D. Fla. July 30, 2007). Once the FBI name check in this case has 23 been completed, USCIS will promptly adjudicate Plaintiff's application. Robles Decl. ¶ 17. 24 Further, USCIS regularly monitors the case to determine whether the name check remains 25 pending. Id. Public safety requires USCIS to make certain that the background checks have been 26 completed and any outstanding issues resolved before it reaches a decision. 27 In Plaintiff's case, this means that USCIS must await the results of the FBI name check before

28 reaching a decision on her I-485 application, and the FBI must be given time to perform an Defendants' Cross-Motion for Summary Judgment C07-4827 SI 6

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1 accurate and thorough check. Moreover, the FBI's "first in, first out" processing approach is a 2 method that is "deserving of deference." Liberty Fund, Inc. v. Chao, 394 F. Supp. 2d 105, 118 3 (D.D.C. 2005); see also In re Barr Lab. Inc., 930 F.2d 72, 76 (D.C. Cir. 1991) ("The agency is in a 4 unique and authoritative position to view its projects as a whole, estimate the prospects for each, 5 and allocate its resources in the optimal way."). 6 7 b. There Is No Congressionally Mandated Timetable

The second TRAC factor does not apply to the present case because there is neither a statutory

8 requirement that the FBI process the name check nor one requiring USCIS to adjudicate the 9 application within a certain amount of time. Contra Intelligence Reform and Terrorism 10 Prevention Act of 2004, Pub. L. No. 108-458, § 3001(g), 118 Stat. 3638 (2004) (requiring 11 Government personnel security checks to be completed within a certain time frame). 12 Additionally, Congress has not provided any clear guidelines indicating the speed at which the 13 FBI and USCIS should conduct its adjudications. Congress has, however, required that USCIS 14 conduct certain criminal and national security background checks to ensure eligibility for 15 adjustment of status. See 8 U.S.C. §§ 1105(b)(1), 1255(a). 16 Defendants acknowledge that Congress has observed that in most instances, applications for

17 immigration benefits should not take more than 180 days to adjudicate. 8 U.S.C. § 1571. 18 However, the statute expresses a "sense of Congress," and is not a mandate. Id. The language in 19 § 1571 is merely precatory, and does not impose a deadline on Defendants. See Wright v. City of 20 Roanoke Redevelopment and Housing, 479 U.S. 418, 432 (1987) (statute phrased in precatory 21 terms does not create a substantive right); Orkin v. Taylor, 487 F.3d 734, 739 (9th Cir. 2007) 22 ("`Sense of Congress' provisions are precatory provisions, which do not in themselves create 23 individual rights, or, for that matter, any enforceable law."). 24 Furthermore, the statute was enacted in 2000, prior to the events of September 11, 2001. See

25 Immigration Services and Infrastructure Improvements Act of 2000, Pub. L. No. 106-313, 114 26 Stat. 1251 (enacted Oct. 17, 2000). Accordingly, it no longer provides a meaningful standard 27 against which the Court can measure the delay at issue in this case. The events of September 11, 28 2001 marked a dramatic shift in issues involving national security. Courts have taken note of this Defendants' Cross-Motion for Summary Judgment C07-4827 SI 7

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1 change: 2 3 4 5 It is well known that since September of 2001, the FBI's resources have been sorely taxed by the demands that have been made on it by the Administration. Legitimate national security concerns, intensified by the sophistication of some of the threats to the lives of people in this country, have forced federal agencies

to be considerably more careful and thorough in their investigations than they were in the past. In short, there was a lot more work for the FBI to do and it 6 had to be done a lot more carefully. Razaq v. Poulos, No. C 06-2461 WDB, 2007 WL 61884, at *12 (N.D. Cal. Jan. 8, 2007). 7 Where there are no statutory guidelines, and in order to establish a "rule of reason," this Court 8 must consider the factors that contribute to the backlogs that both the FBI and USCIS face. See, 9 e.g., INS v. Miranda, 459 U.S. 14, 18 (1982) ("Both the number of the applications received by 10 the INS and the need to investigate their validity may make it difficult for the agency to process an 11 application as promptly as may be desirable"). In making a request for immigration benefits, 12 "aliens only have those statutory rights granted by Congress," Marincas v. Lewis, 92 F.3d 195, 13 203 (3d Cir. 1996), and no federal statute or regulation prescribes a hard-and-fast deadline for 14 acting upon immigration applications, such as the ones in this case, submitted to the USCIS. See 15 Cordoba v. McElroy, 78 F. Supp. 2d 240, 244 (S.D.N.Y. 2000). 16 As discussed in Eldeeb, the FBI name check is a complex process. Eldeeb, 2007 WL 2209231, 17 at *2. It involves a check of a variety of sources, and although most name checks are resolved in a 18 matter of hours, approximately 32 percent require additional, manual review. Id. at *2. Of those 19 remaining checks, 22 percent are returned within two months. Id. The FBI processes name 20 checks chronologically, based on the date the name check is submitted. Id. 21 Before September 11, 2001, the FBI processed approximately 2.5 million name checks per 22 year, checking only the "main" files. Id. at *3. In Fiscal Year 2006, the FBI processed over 3.4 23 million name checks. Id. In addition, the FBI began checking "reference" files. Id. This 24 expansion of the name check procedures prompted USCIS, in December 2002 and January 2003, 25 to resubmit 2.7 million name check requests, for those with pending applications for immigration 26 benefits. Id. at *4. The FBI is currently still working to resolve 440,000 of these resubmitted 27 name checks; because the FBI processes name checks chronologically, the processing of regular 28 name checks has been delayed. Id. Name checks that exceed the two month window require Defendants' Cross-Motion for Summary Judgment C07-4827 SI 8

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1 personal attention of the processing agent. Id. at *5. The FBI currently processes approximately 2 340,000 name checks per year by hand. Id. Thus, it is evident that there are substantial factors 3 contributing to the backlog. 4 5 The third TRAC factor is the delay's impact on human health, welfare, and economic harm to 6 Plaintiff. This factor's analysis overlaps with the analysis of the fifth TRAC factor, the nature and 7 extent of the interests prejudiced by the delay. TRAC, 750 F.2d at 80; Liberty Fund, 394 F. Supp. 8 2d at 118. Plaintiff may be inconvenienced by the delay in adjudication, but this individual 9 interest cannot outweigh Defendants' interest in fully and accurately completing each name check. 10 Security background checks for individuals seeking immigration benefits is a key component to 11 our nation's national security. See The 9/11 Commission Report, 2004 WL 1634382 at 352 (July 12 22, 2004) (finding that, "had the immigration system set a higher bar for determining whether 13 individuals are who or what they claim to be....it could have potentially have excluded, removed, 14 or come into further contact with several hijackers who did not appear to meet the terms for 15 admitting short-term visitors."). 16 In most cases, the adverse impact caused by the delay is not substantial. Applicants for 17 adjustment of status who have pending applications may apply for and obtain employment 18 authorization for the entire time the application is pending. Additionally, most applicants may 19 also apply for and receive advance parole to enable them to travel abroad during the pendency of 20 their application. Even when a more substantial impact is felt by an applicant, this impact, "is 21 unlikely to rise to the level that would significantly change the Court's assessment of the 22 unreasonableness of the delay in light of the importance of the agency's competing priorities." 23 Liberty Fund, 394 F. Supp. 2d at 118. As the highest of priorities, "our national security requires 24 that caution and thoroughness in these matters not be sacrificed for the sake of expediency." 25 Safadi v. Howard, 466 F. Supp. 2d 696, 701 (E.D. Va. 2006). Although a delay in processing may 26 have a negative impact, "nevertheless, in this post-9/11 context, agencies must have the freedom 27 to carefully and thoroughly investigate these applications without judicial interference in their 28 priorities." Patil v. Mueller, et al., No. C 07cv71 JCC, 2007 WL 1302752 at *2 (E.D. Va. Apr. 30, Defendants' Cross-Motion for Summary Judgment C07-4827 SI 9 c. The Impact of the Delay is Minimal in Comparison with the National Interest in Complete and Thorough Background Checks

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1 2007) (holding that the Court had no jurisdiction to issue a writ of mandamus due to legal and 2 policy considerations). Thus, when balancing the agencies' interests in defending against threats 3 to national security against the Plaintiff's interest in adjudication, the interests of the nation must 4 prevail. 5 6 The court in Sze v. INS, No. C 97-0569 SC, 1997 WL 446236, at *8 (N.D. Cal. Jul. 24, 1997), 7 which applied the TRAC test to a similar complained-of delay in the immigration context, found 8 the fourth factor to be the most persuasive. Id. at *8. The court, in refusing to grant relief under 9 the APA, held that "the reasonableness of administrative delays must be judged in light of the 10 resources available to the agency." Id. The court also recognized that by granting relief, it 11 "would, at best, reorder the queue of applications, thereby leading to little net benefit." Id.; see 12 also Liberty Fund, 394 F. Supp. 2d at 117 (deferring to agency's decision on how to handle 13 competing applications for permanent labor certifications). 14 In Liberty Fund, the court refused to grant mandamus relief where it was requested solely due 15 to the length of the delay in processing alien labor certifications. 394 F. Supp. 2d at 115. 16 Applying the TRAC factors, the court held that without a statutory timetable governing agency 17 action, the TRAC factor, "that weighs most heavily under the circumstances of the case is the 18 fourth factor - the effect of granting relief on the agency's competing priorities." Id. at 116. The 19 court reasoned that the agency's "first in, first out processing" was deserving of deference because 20 any grant of relief to Plaintiffs would result in no net gain - Plaintiffs would move to the front of 21 the queue at the expense of other similarly situated applicants. After examining the agency's 22 priorities, growing workload, and good faith efforts to alleviate the delays, the court concluded 23 that mandamus relief was not warranted. Id. at 119. 24 Similarly, the effect of expediting delayed agency action under the fourth TRAC factor would 25 unquestionably impinge upon agency activities and responsibilities of a higher priority. Such an 26 order would intrude on the agency's discretion and ability to fulfill its highest priority of 27 safeguarding the nation. See Boim v. Quranic Literacy Institute, 291 F.3d 1000, 1027 (7th Cir. 28 2002) ("the government's interest in preventing terrorism is not only important but paramount"); Defendants' Cross-Motion for Summary Judgment C07-4827 SI 10 d. The Effect of Expedition Would Intrude on Agency Discretion and Prejudice Other "First In Line" Applicants

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1 see also Walters v. Reno, 145 F.3d 1032, 1043 (9th Cir. 1998) ("The Government's interests in the 2 administration of its immigration laws and in preventing [immigration related] document fraud are 3 likewise considerable.") 4 Delays in the processing of FBI name checks arise for a variety of reasons. First, USCIS is not

5 the only agency that engages in the FBI name check program. Notably, the FBI and USCIS 6 processes' do not occur in vacuums. Any requirement that the FBI or USCIS process Plaintiff's 7 name check or application within a particular time limit will have the unfortunate side effect of 8 slowing the processing for other applicants who are also awaiting action on their applications for 9 immigration benefits. 10 The requests generally processed out-of-order are cases expedited by USCIS for specific

11 health, welfare, or economic reasons. Absent these compelling reasons, moving some individuals 12 to the front of the queue would simply move that group ahead of others who also had been 13 waiting, resulting in no net gain in processing. See In re Barr Lab., 930 F.2d at 75; Mashpee 14 Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1101 (D.C. Cir. 2003). Furthermore, 15 ordering Plaintiff's case to the front of the line sets the precedent that the more litigious applicants 16 are most likely to move to the top of the pile at the expense of other applicants that have waited 17 even longer, but may not have the resources to file suit. Manzoor v. Chertoff, 472 F. Supp 2d 801, 18 809 (E.D. Va. 2007); see also Yan, 2007 WL 1521732 at *7 (holding that a grant of review of 19 plaintiff's claims would only, "encourage other applicants to file suit to receive expedited 20 treatment rather than wait their turn in line."). 21 Moreover, the courts have been cautioned against "engrafting their own notions of proper

22 procedures upon agencies entrusted with substantive functions by Congress." Vermont Yankee 23 Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 525 (1978). 24 Here, where "there are no allegations of bad faith, a dilatory attitude, or a lack of evenhandedness 25 on the part of the agency, the reasonableness of the delays in terms of the legislatively imposed 26 `reasonable dispatch' duty must be judged in light of the resources that Congress has supplied, as 27 well as the impact of the delays on the applicants' interests." Wright, 587 F.2d at 353. The 28 complexity of agency investigations, as well as the extent that the individual applicants Defendants' Cross-Motion for Summary Judgment C07-4827 SI 11

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1 contributed to delays, also enter into a court's deliberations. See Saleh v. Ridge, 367 F. Supp. 2d 2 508, 512 (S.D.N.Y. 2005). An agency's good faith efforts to address delays militate against a 3 finding of unreasonableness. See Wright, 587 F.2d at 345. 4 5 e. The Agencies are Exercising Every Effort to Address the Delay

The sixth and last TRAC factor provides that a court need not find impropriety to hold that an

6 agency action is unreasonably delayed. Conversely, "the good faith of the agency in addressing 7 the delay weighs against mandamus." Liberty Fund, 394 F. Supp. 2d at 120. Here, the delay is 8 due to the pendency of Plaintiff's FBI name check. See Robles Decl. ¶ 7. As discussed above, the 9 FBI is processing the name checks to the best of its ability, and USCIS is monitoring the case to 10 ensure that once the name check is complete, USCIS can complete adjudication. Thus, balancing 11 the TRAC factors demonstrates the reasonableness of the Government's actions. 12 In addition, Plaintiff has failed to show that USCIS will refuse to adjudicate her application

13 once the FBI completes the requisite name check. See Saleh, 367 F. Supp. 2d at 513; see also 14 Eldeeb, 2007 WL 209231, at *17 (finding that the plaintiff had failed to show that USCIS was 15 refusing to act on his application). On the contrary, the FBI and USCIS are taking active steps 16 towards completing the background checks for adjudication of her application. Specifically, 17 USCIS is making every effort to complete adjudication as soon as the name check is completed. 18 Many courts have refused to grant relief under the APA, even when naturalization or other

19 immigration applications were pending for significant time periods. See Saleh, 367 F. Supp. 2d at 20 513 (finding five-year delay not in violation of APA in part in light of volume of applications); 21 Espin v. Gantner, 381 F. Supp. 2d 261, 266 (S.D.N.Y. 2005) (over three-year delay not 22 unreasonable because of government's limited resources and substantial caseload); Alkenani v. 23 Barrows, 356 F. Supp. 2d 652, 656-57 (N.D. Tex. 2005) (no unreasonable delay found in 24 naturalization context because of need to wait for completion of FBI investigation). Just as in 25 these cases, Plaintiff in the present case insists that this Court find an unreasonable delay based 26 solely on the amount of time passed since receipt of her application. However, the law requires a 27 more in-depth analysis for mandamus relief under the APA. A review of the six TRAC factors 28 shows that Defendants have not unreasonably delayed actions pertaining to Plaintiff's adjustment Defendants' Cross-Motion for Summary Judgment C07-4827 SI 12

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1 of status application. 2 3 Mandamus is reserved for those situations in which the Plaintiff's claim is clear and certain. 4 Kildare, 325 F.3d at 1078. Here, because Plaintiff has failed to establish that action on her 5 application has been unreasonably delayed, she has failed to show that her claim is so clear and 6 certain that mandamus is justified. Furthermore, USCIS has exercised its discretion in 7 determining which name checks should be expedited. Plaintiff's case meets none of these criteria. 8 Accordingly, the Court should decline to issue a writ of mandamus. 9 V. CONCLUSION 10 For the foregoing reasons, the Government respectfully asks the Court to grant Defendants' 11 motion for summary judgment as a matter of law. 12 Dated: January 31, 2008 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants' Cross-Motion for Summary Judgment C07-4827 SI 13 /s/ ILA C. DEISS Assistant United States Attorney Attorneys for Defendants JOSEPH P. RUSSONIELLO United States Attorney Respectfully submitted, B. MANDAMUS IS NOT AVAILABLE BECAUSE PLAINTIFF'S CLAIM IS NOT CLEAR AND CERTAIN