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1 SCOTT N. SCHOOLS, SC 9990 United States Attorney 2 JOANN M. SWANSON, CSBN 88143 Assistant United States Attorney 3 Chief, Civil Division EDWARD A. OLSEN, CSBN 214150 4 Assistant United States Attorney 5 6 7 JEFFREY S. BUCHOLTZ 8 United States Department of Justice Acting Assistant Attorney General, Civil Division 9 ELIZABETH J. STEVENS VSBN 47445 Senior Litigation Counsel 10 Office of Immigration Litigation JEFFREY S. ROBINS NY SBN 4355244 11 Trial Attorney 12 13 14 15 UNITED STATES DISTRICT COURT 16 NORTHERN DISTRICT OF CALIFORNIA 17 SAN FRANCISCO DIVISION 18 ALIA AHMADI, et al., 19 Plaintiffs, 20 v. 21 MICHAEL CHERTOFF, et al., 22 23 24 25 26 27 28 Defendants. ) ) ) ) ) ) ) ) ) ) ) No. C-07-3455-WHA DEFENDANTS' ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT P.O. Box 878, Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 616-1246 FAX: (202) 233-0397 Attorneys for Defendants 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102 Telephone: (415) 436-6915 FAX: (415) 436-6927

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1

COME NOW the Defendants, by and through the undersigned counsel, and submit this

2 Answer to the Plaintiffs' Second Amended Complaint. 3 4 1. INTRODUCTION This paragraph sets forth Plaintiffs' portrayal of the action, including their legal

5 conclusions. Defendants object to the characterizations of their actions and to every legal 6 conclusion set forth by Plaintiffs. To the extent that a responsive pleading is required, Defendants 7 admit that plaintiffs Ahmadi, Genthcev, Huang, Ovchinnikov, Sapozhnikov, and Scovajsa are long 8 term Lawful Permanent Residents ("LPR") of the United States. Defendants deny that plaintiffs 9 Ahmadi, Genthcev, Huang, Ovchinnikov, Sapozhnikov, and Scovajsa have met all statutory 10 requirements for naturalization. Defendants admit that plaintiffs plaintiffs Ahmadi, Genthcev, 11 Huang, Ovchinnikov, Sapozhnikov, and Scovajsa have not had their applications for naturalization 12 adjudicated. Defendants deny the remaining allegations in Paragraph 1. 13 2. This paragraph sets forth Plaintiffs' portrayal of the action, including their legal

14 conclusions. Defendants object to the phrase "suffering from systemic delays in the naturalization 15 process" as misleading and an erroneous characterization of Defendants' actions, and further object 16 to every legal conclusion set forth by Plaintiffs. To the extent a responsive pleading is required, 17 Defendants deny the allegations in paragraph 2. Defendants lack sufficient information or 18 knowledge to form a belief as to the truth of the remaining allegations in Paragraph 2, which 19 allegations are therefore denied. 20 3. This paragraph sets forth Plaintiffs' portrayal of the action, including their legal

21 conclusions. Defendants object to the characterizations of their actions and to every legal 22 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants admit 23 only that Defendants Gonzalez and Still are officers of the United States Citizenship and 24 Immigration Services ("CIS") and that Defendant Mueller is an officer of the Federal Bureau of 25 Investigation ("FBI"), and that CIS is responsible for the naturalization process. Defendants deny 26 the remaining allegations in paragraph 3. 27 4. This paragraph sets forth Plaintiffs' portrayal of the action, including their legal

28 conclusions. Defendants object to the characterizations of their actions and to every legal

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1 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants deny 2 that the case is appropriate for class action treatment under Rule 23, and admit only that 8 U.S.C. § 3 1447(b) provides that a district court may make a determination on an application for 4 naturalization if no adjudication occurs within 120 days of the examination. 5 5. This paragraph sets forth Plaintiffs' portrayal of the action, including their legal

6 conclusions. Defendants object to the phrase "Defendant officers of CIS have violated CIS 7 regulations" as misleading and an erroneous characterization of Defendants' actions, and further 8 object to every legal conclusion set forth by Plaintiffs. To the extent a response is deemed 9 necessary, Defendants deny the allegation in paragraph 5. 10 6. Denied. This paragraph sets forth Plaintiffs' claims under the Administrative Procedure

11 Act ("APA"), and the Due Process Clause, which the Court dismissed in its Order dated October 12 15, 2007. 13 7. Denied. This paragraph sets forth Plaintiffs' portrayal of their claims under the APA in

14 which the Court dismissed in its Order dated October 15, 2007. 15 8. 16 9. Admitted. This paragraph sets forth Plaintiffs' portrayal of the action, including their legal

17 conclusions. No response is needed, although Defendants object to the characterizations of their 18 actions and to every legal conclusion set forth by Plaintiffs. To the extent a response is deemed 19 necessary, Defendants deny that plaintiffs have met all statutory requirements for naturalization. 20 Defendants deny that the case is appropriate for class action treatment under Rule 23. Defendants 21 lack sufficient information or knowledge to form a belief as to the truth of the remaining 22 allegations in Paragraph 9. 23 10. This paragraph sets forth Plaintiffs' portrayal of the action, including their legal

24 conclusions. No response is needed, although Defendants object to the characterizations of their 25 actions and to every legal conclusion set forth by Plaintiffs. To the extent a response is deemed 26 necessary, Defendants deny that the case is appropriate for class action treatment under Rule 23. 27 Defendants deny the first and second sentence of Paragraph 10. Defendants lack sufficient 28

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1 information or knowledge to form a belief as to the truth of the remaining allegations in Paragraph 2 10, which allegations are therefore denied. 3 11. This paragraph sets forth Plaintiffs' portrayal of the action, including their legal conclusions

4 and requests for relief. Defendants object to the characterizations of their actions and to every 5 legal conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants 6 deny that the case is appropriate for class action treatment under Rule 23. Plaintiffs' requests for 7 relief under the due process clause and the APA have been dismissed by the Court in its Order 8 dated October 15, 2007. Defendants deny the remaining allegations in Paragraph 11. 9 10 12. JURISDICTION AND VENUE This paragraph sets forth conclusions of law to which no response is required. To the

11 extent that a responsive pleading is required, Defendants admit only that 8 U.S.C. § 1447(b) 12 confers jurisdiction over certain naturalization applications. 13 13. This paragraph sets forth Plaintiffs' portrayal of the action, including their legal

14 conclusions. Defendants object to the characterizations of their actions and to every legal 15 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants admit 16 that venue lies within the Northern District of California. 17 18 Plaintiffs: 19 14. 20 15. 21 16. 22 17. 23 18. 24 19. Admitted. Admitted. Admitted. Admitted Admitted. Admitted. THE PARTIES

25 Defendants: 26 20. 27 21. 28 22. Admitted. Admitted. Admitted.

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1 23. 2 24. 3 4 25. 5 26. 6 27. 7 28. 8 29. 9 30.

Admitted. Admitted. LEGAL FRAMEWORK Admitted. Admitted. Admitted. Admitted. Admitted. This paragraph sets forth Plaintiffs' portrayal of the action, including their legal

10 conclusions. Defendants object to the characterizations of their actions and to every legal 11 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants admit 12 the first sentence of Paragraph 30, and deny the second sentence of paragraph 30. 13 31. This paragraph sets forth Plaintiffs' portrayal of the action, including their legal

14 conclusions. Defendants object to the characterizations of their actions and to every legal 15 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants deny 16 the first sentence of Paragraph 31, and admit the second sentence of paragraph 31. 17 32. This paragraph sets forth Plaintiffs' portrayal of the action, including their legal

18 conclusions. Defendants object to the characterizations of their actions and to every legal 19 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants deny 20 the first sentence of Paragraph 32, and admit the second sentence of paragraph 32. 21 33. Admitted.

22 PRE-NATURALIZATION BACKGROUND CHECKS 23 34. The allegations in Paragraph 34 set forth conclusions of law to which no responsive

24 pleading is required. Defendants object to the characterizations of their actions and to every legal 25 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants 26 respectfully refer the Court to 8 C.F.R. § 335.2. Defendants admit the first two sentences of 27 paragraph 34, and admit the final sentence of paragraph 34. Defendants deny the third sentence of 28 paragraph 34.

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1 35.

The allegations in Paragraph 35 set forth Plaintiffs' portrayal of the action, including their

2 legal conclusions. Defendants object to the characterizations of their actions and to every legal 3 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants admit 4 only that the Interagency Border Inspection System ("IBIS") and the FBI name check are among 5 the name-based background checks performed upon each applicant for naturalization, and deny the 6 remaining allegations in Paragraph 35. 7 36. The allegations in Paragraph 36 set forth Plaintiffs' portrayal of the action, including their

8 legal conclusions. Defendants object to the characterizations of their actions. To the extent a 9 response is deemed necessary, Defendants admit the allegations in Paragraph 36. 10 37. The allegations in Paragraph 37 set forth Plaintiffs' portrayal of the action, including their

11 legal conclusions. Defendants object to the characterizations of their actions and to every legal 12 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants deny 13 the allegations in Paragraph 37. 14 38. The allegations in Paragraph 38 set forth Plaintiffs' portrayal of the action, including their

15 legal conclusions. Defendants object to the characterizations of their actions and to every legal 16 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants deny 17 the allegations in Paragraph 38. 18 39. The allegations in Paragraph 39 set forth Plaintiffs' portrayal of the action, including their

19 legal conclusions. Defendants object to the characterizations of their actions and to every legal 20 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants are 21 without knowledge sufficient to admit or deny the allegations in the first sentence of Paragraph 39, 22 which allegations are therefore denied. Defendants deny the remaining allegations in 23 Paragraph 39. 24 40. The allegations in Paragraph 40 set forth Plaintiffs' portrayal of the action, including their

25 legal conclusions. Defendants object to the characterizations of their actions and to every legal 26 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants deny 27 the allegations in the first two sentences of Paragraph 40. Defendants admit that the CIS 28 Ombudsman's Report contains the quotations in the remainder of Paragraph 40.

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1 41.

The allegations in Paragraph 41 set forth Plaintiffs' portrayal of the action, including their

2 legal conclusions. Defendants object to the characterizations of their actions and to every legal 3 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants are 4 without knowledge sufficient to admit or deny the allegations in the first sentence of Paragraph 41, 5 which allegations are therefore denied. Defendants admit that the CIS Ombudsman's Report 6 contains the quotations in the remainder of Paragraph 41. 7 42. The allegations in Paragraph 42 set forth Plaintiffs' portrayal of the action, including their

8 legal conclusions. Defendants object to the characterizations of their actions and to every legal 9 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants admit 10 only that in April 2006, CIS stopped the practice of scheduling examinations until all portions of 11 the full criminal background check, including the FBI name check, are completed. Defendants 12 respectfully refer the court to review 8 C.F.R. § 335.2. Defendants deny the remaining allegations 13 in paragraph 42. 14 15 43. FACTS PERTAINING TO THE NAMED PLAINTIFFS Defendants admit only that, based on information supplied by Alia Ahmedi and in

16 Defendants' records, Ms. Ahmedi resides in Union City, California, and is a 73-year-old native 17 and citizen of Afghanistan. Defendants are without knowledge sufficient to admit or deny the 18 remaining allegations in this paragraph, which allegations are therefore denied. 19 44. Defendants admit that, based on information supplied by Ms. Ahmedi and in Defendants'

20 records, she applied for citizenship in 2002. Defendants deny that plaintiff Ahmedi meets all the 21 statutory requirements for naturalization. Defendants are without knowledge sufficient to admit or 22 deny the remaining allegations in this paragraph, which allegations are therefore denied. 23 45. The allegations in Paragraph 45 set forth Plaintiffs' portrayal of the action, including their

24 legal conclusions. Defendants object to the characterizations of their actions and to every legal 25 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants admit 26 that USCIS did not have a current set of fingerprints on file. Defendants are without knowledge 27 sufficient to admit or deny the remaining allegations in Paragraph 45, which allegations are 28 therefore denied.

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1 46.

The allegations in Paragraph 46 set forth Plaintiffs' portrayal of the action, including their

2 legal conclusions. Defendants object to the characterizations of their actions and to every legal 3 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants admit 4 only that the results of the FBI name check portion of the full criminal background check were 5 transmitted to CIS on or about October 13, 2005. 6 47. The allegations in Paragraph 47 sets forth Plaintiffs' portrayal of the action, including their

7 legal conclusions. Defendants object to the characterizations of their actions and to every legal 8 conclusion set forth by Plaintiffs. To the extent a response is deemed necessary, Defendants are 9 without knowledge sufficient to admit or deny the allegations in this paragraph, which allegations 10 are therefore denied. 11 48. Defendants admit that Mr. Gentchev is a 53-year-old native and citizen of Bulgaria, who

12 was admitted to the United States in October 1997 as a lawful permanent resident based on 13 sponsorship by an employer. Defendants are without knowledge sufficient to admit or deny the 14 remaining allegations in Paragraph 48, which allegations are therefore denied. 15 49. Defendants are without knowledge sufficient to admit or deny the allegations in Paragraph

16 49, which allegations are therefore denied. 17 50. Defendants admit only that, based on information in Defendants' records, he applied for

18 citizenship in 2002, and successfully completed the civics and English portions of the interview in 19 2003. Defendants deny that plaintiff Gentchev meets all the statutory requirements for 20 naturalization. Defendants are without knowledge sufficient to admit or deny the remaining 21 allegations in this paragraph, which allegations are therefore denied. 22 51. Defendants admit only that CIS received several inquiries from Mr. Gentchev, and that he

23 was informed that his application was awaiting completion of security checks. Defendants are 24 without knowledge sufficient to admit or deny the remaining allegations in Paragraph 51, which 25 allegations are therefore denied. 26 52. Defendants admit that Mr. Huang is a 44-year-old native and citizen of China, who was

27 admitted to the United States in October 1994 as a lawful permanent resident based on the petition 28

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1 of his wife. Defendants are without knowledge sufficient to admit or deny the remaining 2 allegations in Paragraph 52, which allegations are therefore denied. 3 53. Defendants are without knowledge sufficient to admit or deny the allegations in Paragraph

4 53, which allegations are therefore denied. 5 54. Defendants admit only that, based on information in Defendants' records, he applied for

6 citizenship in 2003, and successfully completed the civics and English portions of the interview in 7 2004. Defendants deny that Mr. Huang meets all the statutory requirements for naturalization. 8 Defendants are without knowledge sufficient to admit or deny the remaining allegations in this 9 paragraph, which allegations are therefore denied. 10 55. Defendants are without knowledge sufficient to admit or deny the allegations in Paragraph

11 55, which allegations are therefore denied. 12 56. Defendants are without knowledge sufficient to admit or deny the allegations in Paragraph

13 56, which allegations are therefore denied. 14 57. Defendants admit only that, based on information supplied by Igor Ovchinnikov and in

15 Defendants' records, Mr. Ovchinnikov is a 43-year-old native of the former Soviet Union and 16 citizen of Ukraine, who was admitted to the United States in January 1998 as a lawful permanent 17 resident through the diversity visa program. Defendants are without knowledge sufficient to admit 18 or deny the remaining allegations in Paragraph 57, which allegations are therefore denied. 19 58. Defendants are without knowledge sufficient to admit or deny the allegations in Paragraph 58, 20 which allegations are therefore denied. 21 59. Defendants admit only that, based on information supplied by Mr. Ovchinnikov and in

22 Defendants' records, he applied for citizenship in 2003, and successfully completed the civics and 23 English portions of the interview in 2004. Defendants deny that plaintiff Ovchinnikov meets all 24 the statutory requirements for naturalization. Defendants are without knowledge sufficient to 25 admit or deny the remaining allegations in this paragraph, which allegations are therefore denied. 26 60. Defendants object to the characterizations of their actions and to every legal conclusion set

27 forth by Plaintiffs. Defendants admit only that USCIS requested updated fingerprints in June of 28

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1 2005. Defendants are without knowledge sufficient to admit or deny the remaining allegations in 2 Paragraph 60, which allegations are therefore denied. 3 61. Defendants admit only that CIS received several inquiries from Mr. Ovchinnikov, and that

4 he was informed that his application was awaiting completion of security checks. Defendants also 5 admit that Mr. Ovchinnikov requested that his application be expedited in February of 2007. 6 Defendants are without knowledge sufficient to admit or deny the remaining allegations in 7 Paragraph 61, which allegations are therefore denied. 8 62. Defendants are without knowledge sufficient to admit or deny the allegations in this

9 paragraph, which allegations are therefore denied. 10 63. Defendants admit only that, based on information supplied by Sergei Yuri Sapozhnikov and

11 in Defendants' records, Mr. Sapozhnikov is a 46-year-old native of the former Soviet Union and 12 citizen of Russia, who became a lawful permanent resident in 1998. Defendants lack sufficient 13 information or knowledge to form a belief as to the truth of the remaining allegations in Paragraph 14 63, which allegations are therefore denied. 15 64. Defendants admit only that, based on information supplied by Mr. Sapozhnikov and in

16 Defendants' records, he applied for citizenship in 2004, and successfully completed the civics and 17 English portions of the interview in 2004. Defendants are without knowledge sufficient to admit 18 or deny the remaining allegations in this paragraph, which allegations are therefore denied. 19 65. Defendants lack sufficient information or knowledge to form a belief as to the truth of the

20 allegations in Paragraph 65, which allegations are therefore denied. 21 66. Defendants admit only that Helga Scovajsa is a 68-year-old native of former Czechoslovakia

22 and a citizen of the Czech Republic, who became a lawful permanent resident in 1978 based on the 23 petition of her husband. Defendants lack sufficient information or knowledge to form a belief as 24 to the truth of the remaining allegations in Paragraph 66, which allegations are therefore denied. 25 67. Defendants admit only that, Ms. Scovajsa applied for citizenship in 2004, and successfully

26 completed the civics and English portions of the interview also in 2004. Defendants are without 27 knowledge sufficient to admit or deny the remaining allegations in this paragraph, which 28 allegations are therefore denied. Defendants deny that Ms. Scovajsa meets all the statutory

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1 requirements for naturalization. Defendants are without knowledge sufficient to admit or deny the 2 remaining allegations in this paragraph, which allegations are therefore denied. 3 68. Defendants admit only that CIS received at least one inquiry from Ms. Scovajsa, and that

4 she was informed that her application was awaiting completion of security checks. Defendants are 5 without knowledge sufficient to admit or deny the remaining allegations in Paragraph 68, which 6 allegations are therefore denied. 7 69. Defendants lack sufficient information or knowledge to form a belief as to the truth of the 8 allegations in Paragraph 69, which allegations are therefore denied. 9 Defendants' Policies and Practices 10 70. Denied. Defendants object to the characterizations of Defendants' actions and to every

11 legal conclusion set forth by Plaintiffs. Defendants assert that the case is not appropriate for class 12 action treatment under Rule 23. 13 71. Denied. Defendants object to the characterizations of Defendants' actions and to every

14 legal conclusion set forth by Plaintiffs. Defendants assert that the case is not appropriate for class 15 action treatment under Rule 23. 16 72. Denied. Defendants object to the characterizations of Defendants' actions and to every

17 legal conclusion set forth by Plaintiffs. Defendants assert that the case is not appropriate for class 18 action treatment under Rule 23. 19 73. Denied. Defendants object to the characterizations of Defendants' actions and to every

20 legal conclusion set forth by Plaintiffs. Defendants assert that the case is not appropriate for class 21 action treatment under Rule 23. 22 74. Denied. Defendants object to the characterizations of Defendants' actions and to every

23 legal conclusion set forth by Plaintiffs. Defendants assert that the case is not appropriate for class 24 action treatment under Rule 23. 25 75. Denied. Defendants object to the characterizations of Defendants' actions and to every

26 legal conclusion set forth by Plaintiffs. 27 76. Denied. Defendants object to the characterizations of Defendants' actions and to every

28 legal conclusion set forth by Plaintiffs.

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1 77.

The court dismissed all of Plaintiffs' claims under the APA, including Plaintiffs'

2 allegations regarding notice and comment, in its Order dated October 15, 2007. To the extent that 3 a responsive pleading is required, Defendants are without knowledge sufficient to admit or deny 4 the allegations in the first sentence, which allegations are thus denied, and deny the allegations in 5 the second sentence. 6 78. Denied. Defendants object to the characterizations of Defendants' actions and to every

7 legal conclusion set forth by Plaintiffs. Defendants assert that the case is not appropriate for class 8 action treatment under Rule 23. 9 PREJUDICE SUFFERED BY APPLICANTS WITH DELAYED CASES 10 79. Denied. Defendants object to the characterizations of Defendants' actions and to every

11 legal conclusion set forth by Plaintiffs. Defendants assert that the case is not appropriate for class 12 action treatment under Rule 23. 13 80. Defendants deny that Plaintiffs assert cognizable injuries. Defendants admit that a minor

14 child may obtain derivative citizenship from a naturalizing parent, and that immediate relatives of 15 United States citizens are not generally subject to worldwide limitations on the number of 16 immigrant visas. 17 81. Defendants are without knowledge sufficient to admit or deny the allegations in this

18 paragraph, which allegations are therefore denied, and note that none of the plaintiffs named in 19 this action have alleged separations from their spouses or children. 20 82. Defendants are without knowledge sufficient to admit or deny the allegations in this

21 paragraph, which allegations are therefore denied. 22 83. Defendants are without knowledge sufficient to admit or deny the allegations in this

23 paragraph, which allegations are therefore denied. 24 84. Defendants deny the allegations in paragraph 84. Defendants object to the

25 characterizations of Defendants' actions set forth by Plaintiffs. 26 CLASS ALLEGATIONS 27 85. 28 Defendants deny that the case is appropriate for class action treatment under Rule 23.

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1 86.

Defendants deny that the case is appropriate for class action treatment under Rule 23.

2 Defendants admit that the CIS Ombudsman's 2007 report contained the quotations and figures 3 used in Paragraph 86. 4 87. Defendants deny that the case is appropriate for class action treatment under Rule 23.

5 Defendants admit only that the CIS 2005 report contained the numbers used in Paragraph 87. 6 88. Defendants deny that the case is appropriate for class action treatment under Rule 23, and

7 deny that plaintiffs have demonstrated commonality. Defendants assert that Plaintiffs' claims 8 under the due process clause and the APA, have been dismissed by the Court in its Order dated 9 October 15, 2007. 10 89. Defendants deny that the case is appropriate for class action treatment under Rule 23, and

11 deny that plaintiffs have demonstrated typicality. Defendants object to the characterizations of 12 Defendants' actions and to every legal conclusion set forth by Plaintiffs. 13 90. Defendants deny that the case is appropriate for class action treatment under Rule 23, and

14 deny that the allegations in Paragraph 90. Defendants object to the characterizations of 15 Defendants' actions and to every legal conclusion set forth by Plaintiffs. 16 91. Defendants deny that the case is appropriate for class action treatment under Rule 23, and

17 deny that Plaintiffs have demonstrated that they will adequately represent the Class. Defendants 18 Defendants admit that counsel for Plaintiffs have extensive expertise in class action litigation 19 and/or immigrants rights cases. Defendants object to the characterizations of Defendants' actions 20 and to every legal conclusion set forth by Plaintiffs, and deny the final sentence of paragraph 91. 21 Declaratory And Injunctive Relief Allegations 22 92. The allegations in Paragraph 92 set forth conclusions of law to which no responsive

23 pleading is required. However, to the extent a response is deemed necessary, Defendants deny the 24 first and second sentence of Paragraph 92, and admit that Defendants disagree with Plaintiffs. 92. 25 26 94. Denied. The allegations in Paragraph 94 set forth Plaintiffs' request for relief, to which no

27 responsive pleading is required. However, to the extent a response is deemed necessary, 28 Defendants deny the allegations in Paragraph 94.

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1 2 Count One 3 95.

CAUSES OF ACTION

Defendants reassert their preceding responses to Plaintiffs' allegations in Paragraphs 1

4 through 94 as though fully set forth herein. 5 96. Denied. Defendants object to the characterizations of Defendants' actions and to every

6 legal conclusion set forth by Plaintiffs. 7 97. Defendants deny any named Plaintiff has met all statutory requirements for naturalization.

8 Defendants admit that all named plaintiffs have not had their applications adjudicated. 9 Count Two 10 98. Defendants reassert their preceding responses to Plaintiffs' allegations in Paragraphs 1

11 through 97 as though fully set forth herein. 12 99. Denied. This paragraph sets forth Plaintiffs' portrayal of their claims under the APA in

13 which the Court dismissed in its Order dated October 15, 2007. 14 100. Denied. This paragraph sets forth Plaintiffs' portrayal of their claims under the APA in

15 which the Court dismissed in its Order dated October 15, 2007. Defendants object to the 16 characterizations of Defendants' actions and to every legal conclusion set forth by Plaintiffs. 17 101. Denied. This paragraph sets forth Plaintiffs' portrayal of their claims under the APA in

18 which the Court dismissed in its Order dated October 15, 2007. Defendants object to the 19 characterizations of Defendants' actions and to every legal conclusion set forth by Plaintiffs. 20 102. Denied. This paragraph sets forth Plaintiffs' portrayal of their claims under the APA in

21 which the Court dismissed in its Order dated October 15, 2007. Defendants object to the 22 characterizations of Defendants' actions and to every legal conclusion set forth by Plaintiffs. 23 103. Denied. This paragraph sets forth Plaintiffs' portrayal of their claims under the APA in

24 which the Court dismissed in its Order dated October 15, 2007. Defendants object to the 25 characterizations of Defendants' actions and to every legal conclusion set forth by Plaintiffs. 26 Count Three 27 104. Defendants reassert their preceding responses to Plaintiffs' allegations in Paragraphs 1

28 through 103 as though fully set forth herein.

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1 105. 2 106.

Admitted. Denied. This paragraph sets forth Plaintiffs' portrayal of their claims under the APA in

3 which the Court dismissed in its Order dated October 15, 2007. Defendants object to the 4 characterizations of Defendants' actions and to every legal conclusion set forth by Plaintiffs. 5 107. Denied. This paragraph sets forth Plaintiffs' portrayal of their claims under the APA in

6 which the Court dismissed in its Order dated October 15, 2007. Defendants object to the 7 characterizations of Defendants' actions and to every legal conclusion set forth by Plaintiffs. 8 108. Denied. This paragraph sets forth Plaintiffs' portrayal of their claims under the APA in

9 which the Court dismissed in its Order dated October 15, 2007. Defendants object to the 10 characterizations of Defendants' actions and to every legal conclusion set forth by Plaintiffs. 11 109. Denied. This paragraph sets forth Plaintiffs' portrayal of their claims under the APA in

12 which the Court dismissed in its Order dated October 15, 2007. Defendants object to the 13 characterizations of Defendants' actions and to every legal conclusion set forth by Plaintiffs. 14 Count Four 15 110. Defendants reassert their preceding responses to Plaintiffs' allegations in Paragraphs 1

16 through 109 as though fully set forth herein. 17 111. The allegation in Paragraph 111 sets forth a conclusion of law to which no responsive

18 pleading is required. To the extent that an answer by Defendants is required, Defendants admit the 19 legal conclusions in Paragraph 111. 20 112. Denied. This paragraph sets forth Plaintiffs' portrayal of their claims under the Due

21 Process Clause which the Court dismissed in its Order dated October 15, 2007. Defendants object 22 to the characterizations of Defendants' actions and to every legal conclusion set forth by Plaintiffs. 23 113. Denied. This paragraph sets forth Plaintiffs' portrayal of their claims under the Due

24 Process Clause which the Court dismissed in its Order dated October 15, 2007. Defendants object 25 to the characterizations of Defendants' actions and to every legal conclusion set forth by Plaintiffs. 26 114. Denied. This paragraph sets forth Plaintiffs' portrayal of their claims under the Due

27 Process Clause which the Court dismissed in its Order dated October 15, 2007. Defendants object 28 to the characterizations of Defendants' actions and to every legal conclusion set forth by Plaintiffs.

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1 2

PRAYER FOR RELIEF The remainder of the complaint constitutes Plaintiffs' request for relief to which no

3 responsive pleading is necessary. To the extent that a responsive pleading is required, Defendants 4 deny the prayer for relief. 5 Defendants deny that Plaintiffs are entitled to the relief sought in the complaint or to any

6 relief whatsoever. 7 8 9 10 11 12 13 14 * * * * *

In addition, Defendants assert the following affirmative defenses: FIRST AFFIRMATIVE DEFENSE The complaint fails to state a claim upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE The complaint should be dismissed on the ground of mootness. THIRD AFFIRMATIVE DEFENSE The complaint is so general as to be insufficient to give Defendants fair notice of whether

15 Plaintiffs have standing to assert their claims. 16 17 FOURTH AFFIRMATIVE DEFENSE The complaint should be summarily dismissed, as the remaining named Plaintiffs have

18 failed to demonstrate that they meet all the statutory requirements for naturalization. 19 20 FIFTH AFFIRMATIVE DEFENSE The complaint is so general as to be insufficient to give Defendants fair notice of the bases

21 upon which Plaintiffs bring their claims. 22 23 SIXTH AFFIRMATIVE DEFENSE This Court lacks jurisdiction over Plaintiffs' Cause of Action under the Administrative

24 Procedure Act. 25 26 SEVENTH AFFIRMATIVE DEFENSE This Court lacks jurisdiction over Plaintiffs' Cause of Action under the Declaratory

27 Judgment Act. 28

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1 2

EIGHTH AFFIRMATIVE DEFENSE Relief should be denied plaintiffs as an exercise of judicial discretion to withhold relief.

3 The Court should not, even if empowered to do so, engage in the business of reordering agency 4 priorities, or jeopardize national security or the public safety by ordering Defendants to provide 5 documentation to Plaintiffs and alleged class members before the satisfactory completion of all 6 requisite background and security checks. 7 8 9 10 NINTH AFFIRMATIVE DEFENSE Plaintiffs have failed to state a cause of action under the Due Process Clause. * * * * *

WHEREFORE Defendants ask that this action be dismissed with prejudice, that judgment

11 be entered for Defendants, that the request of an award of costs and expenses of the suit be denied 12 to Plaintiffs, and that the Court grant such other and further relief to Defendants as it deems 13 proper. 14 15 16 17 18 19 20 21 22 23 24 Dated: November 30, 2007 By: 25 26 27 28 /s/ JEFFREY S. ROBINS Trial Attorney JEFFREY S. BUCHOLTZ United States Department of Justice Acting Assistant Attorney General, Civil Division ELIZABETH J. STEVENS Senior Litigation Counsel SCOTT N. SCHOOLS United States Attorney JOANN M. SWANSON Assistant United States Attorney Chief, Civil Division EDWARD A. OLSEN Assistant United States Attorney Respectfully submitted,

Defendants' Answer To Plaintiffs' Second Amended Complaint - C-07-3455-W HA

17

Case 3:07-cv-03455-WHA

Document 48

Filed 11/30/2007

Page 18 of 18

1 2 Case No. C-07-3455-WHA 3

CERTIFICATE OF SERVICE

I hereby certify that on this 30th day of November 2007, one copy of the foregoing DEFENDANTS' ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT was 5 served on counsel for Plaintiffs via the district court ECF system which will send notification of such filing to the following ECF filers: 6 Julia Harumi Mass 7 [email protected] Alan L. Schlosser 8 [email protected] Cecillia D. Wang 9 [email protected] ACLU Foundation of Northern California 10 Lucas Guttentag [email protected] 11 ACLU Immigrants' Rights Project Christopher Joren Lyons 12 [email protected] Asian Law Caucus 13 Edward A. Olsen [email protected] 14 United States Attorney's Office Elizabeth J. Stevens 15 [email protected] Department of Justice, Office of Immigration Litigation 16 In addition, I hereby certify that on this 30th day of November 2007, true and correct copies 17 of DEFENDANTS' ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT were served by Federal Express next-day delivery on the following non-ECF filers: 18 Sin Yen Ling Todd Gallinger 19 Asian Law Caucus Council on American-Islamic Relations (CAIR) 939 Market Street, Suite 201 3000 Scott Boulevard, Suite 212 20 San Francisco, CA 94103 Santa Clara, CA 95054 4 21 22 23 24 25 26 27 28 /S/ JEFFREY S. ROBINS Trial Attorney Office of Immigration Litigation Civil Division U.S. Department of Justice Post Office Box 878, Ben Franklin Station Washington, D.C. 20044

Defendants' Answer To Plaintiffs' Second Amended Complaint - C-07-3455-W HA