United States District Court, N.D. California
October 12, 2004.
MARIA SANTILLAN, FLORA RODRIGUEZ SANTILLAN, JAMIE RODRIGUEZ SANTILLAN, ANGELA DESOUZA, MARCOS SOSA CARTAGENA, ZIBER ISMAILI, ANITA LASBREY, ZOILA LOPEZ GONZALEZ, RAFAELA VALDEZ PARRA, MARIA VALDA MOHAMAD, on behalf of themselves and others similarly situated, Plaintiffs,
JOHN ASHCROFT, Attorney General of the United States; TOM RIDGE, 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.
The opinion of the court was delivered by: MARILYN PATEL, Chief Judge, District
Plaintiffs Maria Santillan, et al., seek certification of a
class consisting 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. The class
definition excludes those plaintiffs to other actions pending in
Florida and Texas district courts. 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"). Following the EOIR's determination, plaintiffs sought
documentation of their adjusted status as LPRs from their local
U.S. Citizenship and Immigration Services ("USCIS") suboffice,
through a process called Alien Documentation, Identification and
Telecommunication ("ADIT") processing.
Under policies commenced in the aftermath of September 11,
2001, all applicants for documentation of their adjusted status
through ADIT processing must undergo background and security
checks involving multiple federal agencies. See Sposato Decl.
¶¶ 1-9. Until those checks are completed, the USCIS is not
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. See
Sposato Decl. ¶¶ 11-12.
Plaintiffs allege that under this current system, LPRs are
waiting from several months to over one year for the commencement
of their ADIT processing, as well as long time periods for the
completion of processing and the issuance of documentation
verifying LPR status. See Plaintiffs' Exhs. A-J. They allege
that during this post-adjudication, pre-documentation period,
many immigrants are losing 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. See, e.g., Santillan Decl. ¶¶ 10-14; Rodriguez
Santillan Decl. ¶¶ 10-13. 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."
Since the date of filing their complaint, a period of only two
and one-half months, the status of all ten originally named
plaintiffs has changed. After waiting periods of 10 to 20 months,
seven named plaintiffs received documentation of their lawful
permanent resident status during the period of July 30, 2004 through mid-September, 2004, and the three
remaining plaintiffs were summoned to commence ADIT processing.
See Sposato Supplemental Decl. ¶¶ 1-2. In a separate motion
pending before this court, plaintiffs have moved to add six new
named plaintiffs to their complaint. See Pl.'s Mot. to for
Leave Amend. According to plaintiffs, these proposed new named
plaintiffs have not received or been summoned to receive
documentation of their LPR status, as they remain in the middle
of various stages of pre-ADIT or ADIT processing. Id. at 4;
I. Article III Justiciability
The jurisdiction of federal courts depends on the existence of
a "case or controversy" under Article III of the Constitution.
PUC v. FERC, 100 F.3d 1451, 1458 (9th Cir. 1996). Inquiry into
a plaintiff's standing under Article III is a jurisdictional
requirement that must be satisfied prior to class certification.
LaDuke v. Nelson, 762 F.2d 1318, 1325 (9th Cir. 1985). The
present motion for class certification raises questions relating
to three dimensions of justiciability: standing, mootness, and
ripeness. See Armstrong v. Davis, 275 F.3d 849, 860 (9th Cir.
2001) (noting that standing, class certification, and the scope
of relief are "often intermingled").
Article III § 2 of the Constitution extends the judicial power
of the federal courts only to cases or controversies. Steel Co.
v. Citizens for a Better Environment, 523 U.S. 83, 101 (1998).
Under Article III, federal courts cannot entertain a litigant's
claims unless that party has satisfied its burden to demonstrate
both constitutional and prudential standing to sue. Defenders of
Wildlife v. Lujan, 504 U.S. 555, 560 (1992). To meet
constitutional requirements, a plaintiff must show that (1) it
has suffered an "injury in fact" which is "concrete and
particularized" and "actual or imminent"; (2) the injury is
fairly traceable to the challenged actions the by defendant; and,
(3) "it must be `likely,' as opposed to merely `speculative,'
that the injury will be redressed by a favorable decision." Id.
at 560-61 (internal quotations and citations omitted). Prudential
requirements for standing include: (1) whether plaintiff's alleged injury falls
within the "zone of interests" protected by the statute or
constitutional provision at issue, (2) whether the complaint
amounts to generalized grievances that are more appropriately
resolved by the legislative and executive branches, and (3)
whether the plaintiff is asserting his or her own legal rights
and interests, rather than those of third parties. See Desert
Citizens Against Pollution v. Bisson, 231 F.3d 1172, 1179 (9th
Cir. 2000); Gladstone, Realtors v. Village of Bellwood,
441 U.S. 91, 100 (1979); Powers v. Ohio, 499 U.S. 400, 410 (1991).
"A claim is moot if it has lost its character as a present,
live controversy." American Rivers v. National Marine Fisheries
Service, 126 F.3d 1118, 1123 (9th Cir. 1997) (citing American
Tunaboat Ass'n v. Brown, 67 F.3d 1404, 1407 (9th Cir. 1995)).
"In the context of declaratory and injunctive relief, [a
plaintiff] must demonstrate that she has suffered or is
threatened with a concrete and particularized legal harm, coupled
with a sufficient likelihood that she will again be wronged in a
similar way." Bird v. Lewis & Clark College, 303 F.3d 1015,
1019 (9th Cir. 2002) (internal quotation marks and citation
omitted), cert. denied, 538 U.S. 923. Where the activities
sought to be enjoined have already occurred and the courts
"cannot undo what has already been done, the action is moot."
Friends of the Earth, Inc. v. Bergland, 576 F.2d 1377, 1379
(9th Cir. 1978). "The burden of demonstrating mootness is a heavy
one." Northwest Environmental Defense Center v. Gordon,
849 F.2d 1241, 1243 (9th Cir. 1988).
In the class action context, the mootness of named plaintiffs
does not defeat the class claims where unnamed class members
continued to present justiciable claims and where the class has
already been certified under Rule 23. See County of Riverside
v. McLaughlin, 500 U.S. 44, 52 (1991). Certification itself
brings unnamed class members before the court for Article III
purposes, and therefore the mooting of a named plaintiff's claims
does not require dismissal. Sosna v. Iowa, 419 U.S. 393,
399-400 (1975) (holding that a mooted named plaintiff challenging
a one-year residency requirement could continue to represent a
certified class because "[a]lthough the controversy is no longer alive as to [named plaintiff], it
remains very much alive for the class of persons she has been
certified to represent" and because otherwise "the issue sought
to be litigated escapes full appellate review at the behest of
any single challenger"). Before class certification, however, the
mootness of named class members will bar adjudication of the Rule
23 motion unless the case falls into a recognized exception to
mootness doctrine, for instance where the challenged conduct is
transitory. See County of Riverside, 500 U.S. at 52
(upholding a certified class despite pre-certification mootness
of named plaintiffs' claims because the "inherently transitory"
nature of some claims would deny any realistic chance for class
certification before proposed a representative's personal
interest would expire).
Mootness doctrine also recognizes an exception for claims which
are "capable of repetition yet evading review." Native Village
of Noatak v. Blatchford, 38 F.3d 1505, 1509 (9th Cir. 1994);
Wiggins v. Rushen, 760 F.2d 1009, 1011 (9th Cir. 1985). This
exception is limited to extraordinary circumstances where two
elements combine: (1) the challenged action is of limited
duration, too short to be fully litigated prior to its cessation
or expiration, and (2) there is a reasonable expectation that the
same complaining party will be subjected to the same action
again. Porter v. Jones, 319 F.3d 483, 489-90 (9th Cir. 2003);
Wiggins, 760 F.2d at 1011. When resolution of a controversy
depends on facts that are unique or unlikely to be repeated, the
action is not capable of repetition and is moot. See PUC v.
FERC, 100 F.3d 1451, 1460 (9th Cir. 1996). After certification
of a class action, the second element articulated in Porter
will be satisfied even where a named plaintiff may not personally
be subjected to the short-duration harm again. See Sosna,
419 U.S. at 399-400 (affirming class certification where a challenged
practice could not be enforced personally against named plaintiff
again, but would be enforced against other class members).
"Ripeness doctrine protects against premature adjudication of
suits in which declaratory relief is sought," Hodgers-Durgin v.
de la Vina, 199 F.3d 1037, 1044 (9th Cir. 1999) (en banc), in
order to prevent "entanglement in theoretical or abstract
disagreements that do not yet have a concrete impact on the parties." 18 Unnamed "John Smith" Prisoners v. Meese,
871 F.2d 881, 883 (9th Cir. 1989). The ripeness inquiry contains
both a constitutional and a prudential component. Thomas v.
Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1138 (9th Cir.
2000) (en banc).
The requirements of Rule 23 protect defendants from "overbroad"
class definitions. See Amchem Products, Inc., v. Windsor,
521 U.S. 591, 560 (1997). Rule 23 does not, however, limit the
geographic scope of a certified class. Califano v. Yamasaki,
442 U.S. 682, 702 (1979). A nationwide class is permissible under
principles of equity because "the scope of injunctive relief is
dictated by the extent of the violation established, not by the
geographical extent of the plaintiff class." Id. When asked to
certify a nationwide class, a district court must ensure that
nationwide certification is appropriate, and that such
certification would not "improperly interfere with the litigation
of similar issues in other judicial contexts." Id. Accordingly,
district courts may shape the contours of a nationwide class to
exclude pending cases addressing similar issues, thus avoiding
interference with other courts. See Ali v. Ashcroft,
346 F.3d 873, 888 (9th Cir. 2003). See also Lundquist v. Security
Pac. Automotive Financial Serv. Corp., 993 F.2d 11, 14 (2d Cir.
1993) (holding that a district court "is not bound by the class
definition proposed in the complaint and should not dismiss the
action simply because the complaint seeks to define the class too
III. Rule 23
A party seeking to certify a class must satisfy four
prerequisites enumerated in Federal Rule of Civil Procedure
23(a), as well as at least one of the requirements of Rule 23(b).
The prerequisites of Rule 23(a) include: (1) numerosity (a class
so large that joinder of all members is impracticable); (2)
commonality (questions of law or fact common to the class); (3)
typicality (named parties' claims are typical of the class); and
(4) adequacy of representation (representatives will fairly and
adequately protect the interests of the class). In addition, Rule
23(b) requires a showing that the action is maintainable under
Rule 23(b)(1), (2), or (3). See Rule 23(b). Plaintiffs assert
that this case falls within Rule 23(b)(2). Rule 23(b)(2) permits class actions
for declaratory or injunctive relief where the party opposing the
class "has acted or refused to act on grounds generally
applicable to the class." Rule 23(b)(2).
The party seeking relief must provide facts sufficient to
satisfy the requirements of Rule 23(a) and (b). In ruling on a
motion to certify, the court accepts as true a plaintiff's
allegations in the complaint, as long as the court has sufficient
information to form a reasonable judgment on the class
certification requirements. See Blackie v. Barrack,
524 F.2d 891, 901 n. 17 (9th Cir. 1975) (holding that "[s]o long as [a
district judge] has sufficient material before him to determine
the nature of the allegations, and rule on compliance with the
Rule's requirements, and he bases his ruling on that material,
his approach cannot be faulted because plaintiffs' proof may fail
at trial"). Courts may not review the merits of a case for
purposes of class certification, Eisen v. Carlisle & Jacquelin,
417 U.S. 156, 177-78 (1974), except as necessary to perform a
rigorous Rule 23 analysis. See Moore v. Hughes Helicopters,
Inc., 708 F.2d 475, 480 (9th Cir. 1983). Rule 23 confers "broad
discretion" on district courts to determine eligibility for
certification and subsequently revisit that determination.
Armstrong v. Davis, 275 F.3d 849, 872 n. 28 (9th Cir. 2001).
I. Justiciability of Plaintiff's Case
Named plaintiffs in the present action declare that they have
been denied evidence of temporary registration pending security
clearance, and that without such documentation of their adjusted
status, they have not been entitled to the employment, travel,
educational, and public benefits privileges granted to legal
permanent residents. See Plaintiffs' Decls., Exhs A-J. As a
motion to certify a class is not a review of the substantive
merits of a case, this court is not in a position to evaluate the
veracity or scope of these injuries. See Blackie v. Barrack,
524 F.2d 891, 901 n. 17 (9th Cir. 1975); Eisen v. Carlisle &
Jacquelin, 417 U.S. 156, 177-78 (1974). The declarations simply
provide adequate allegations of injuries on which to base a
reasonable judgment that they have personal standing to bring this case, given the
direct effect of the contested government policies on plaintiffs
themselves. See Lujan v. Defenders of Wildlife, 504 U.S. 555,
561 (1992) (holding that in suits challenging the legality of
government conduct, the nature of the facts necessary to
establish standing is considerably diminished if the plaintiff
himself is "an object of the action . . . at issue," rather than
a third party to the government action).
In order to assert claims on behalf of a class, named
plaintiffs must demonstrate that they have personally sustained
an injury which results from a challenged statute or government
conduct. See Armstrong v. Davis, 275 F.3d 849, 860 (9th Cir.
2001). The Ninth Circuit has described two means of making such a
demonstration: first, plaintiffs may show that defendant had a
written policy sanctioning the contested conduct, or second,
plaintiffs may show that the harm is part of a pattern of
officially-sanctioned conduct. Id. at 861. In defendants'
opposition motion and attached declaration, the government has
conceded the existence of policies and practices requiring
background checks of all recently-adjusted LPRs, and they have
detailed the required stages and actors involved in such
clearances. See Sposato Decl. ¶¶ 1-13. Named plaintiffs, for
their part, have alleged injuries which stem directly from the
defendants' policies regarding issuance of temporary
documentation of status, as well as from the time required to
implement the background check policies. See Plaintiffs' Decls.
A-J. The court finds that the plaintiffs have satisfied the
requisite showing of an injury derived from challenged government
policies and practices.
Defendants also argue that plaintiffs have exclusively alleged
past harms which cannot recur. Defendants are correct that past
harms, with an uncertain chance of repetition, are an inadequate
basis on which to establish standing. See Los Angeles v.
Lyons, 461 U.S. 95 (1983) (holding that the plaintiff's past
injury did not establish a personal stake in prospective relief
because he did not face an immediate threat of future injury).
However, the Ninth Circuit has distinguished Lyons from cases
in which a written policy or common practice ensures repetition
in the future. See LaDuke v. Nelson, 762 F.2d 1318, 1324
(1985) (holding that the case at bar was distinct from Lyons in
that the district court made a finding of "a standard pattern of
officially sanctioned officer behavior"). In the present action,
the existence of clear policies and practices within the
Department of Homeland Security mean that unnamed and future class members will face the
contested delays in the future. See Sposato Decl. ¶ 13
(describing security clearance procedures and stating that the
USCIS will "continue to perform" background checks). The present
action therefore satisfies the LaDuke and Armstrong standards
for establishing standing on behalf of a class. In addition, the
injuries allegedly sustained by the named plaintiffs (excluding
those seven plaintiffs who were recently documented as LPRs)
represent a present, on-going harm rather than a "past injury"
subject to the Lyons standing rule. Until they receive
documentation of their status, there has been no termination of
the harm and thus there is no question as to their standing to
bring this case. Once a class is certified, termination of the
harm for individual named plaintiffs does not defeat the standing
of the class. See LaDuke, 762 F.2d at 1325 (holding that "the
fact of certification will preserve a class's standing even after
the named individual representatives have lost the required
personal stake") (internal citations omitted).
Subject to other justiciability concerns, the named plaintiffs
have alleged adequate injury to establish standing to represent a
class of similarly-situated individuals.
Since the filing of this case, seven named plaintiffs have
received temporary or permanent documentation of LPR status after
the successful completion of their background checks. See
Sposato Supplemental Dec. ¶ 1. In addition, barring unforeseen
clearance issues, the other three originally-named plaintiffs
have been scheduled to appear to receive documentation of their
adjusted LPR status following the issuance of this order. See
Sposato Supplemental Dec. ¶ 2 (stating that Maria Santillan de
Lopez, Flora Rodriguez Santillan, and Jaime Rodriguez Santillan
are currently in the process of background and security checks).
The defendants argue that the claims of these seven plaintiffs
and potentially of others as proceedings before this court
advance are now moot, rendering these named plaintiffs
incapable of certification as class representatives.
There is no question that three of the ten named plaintiffs'
claims present live controversies, as per the discussion of
standing above. Until receiving temporary or permanent
documentation of their status as LPRs, their alleged injuries
continue. For the seven named plaintiffs who have received documentation of their status, their claims have been
mooted by the resolution of their conflict with defendants. See
Friends of the Earth, Inc. v. Bergland, 576 F.2d 1377, 1379
(9th Cir. 1978) (holding that where the activities sought to be
enjoined have already occurred and the courts cannot undo any
harm caused, the action is moot.)
Plaintiffs have asked this court to preserve all ten named
plaintiffs as class representatives, applying the rule announced
in Zeidman v. McDermott, 651 F.2d 1030 (5th Cir. 1981) that a
motion for class certification brought before a district court
need not be dismissed for mootness where defendants, perhaps
strategically, have tendered resolution of individual plaintiff's
claims. Id. at 1051. The court reasoned that plaintiffs could
be "picked off" before class certification, making a decision on
class certification very difficult to procure. Id. at 1050.
Indeed, the Supreme Court has expressed concern over a "narrow
class of cases" where the ability of defendants to defeat
adversity with one named plaintiff at a time would "lead to the
reality that otherwise the issue would evade review." Deposit
Guaranty National Bank v. Roper, 445 U.S. 326, 341 (1980)
(internal citations omitted).
This court declines to adopt the Zeidman rule here. The Ninth
Circuit has suggested that in order to show strategic resolution
of named plaintiffs' claims in response to litigation, plaintiffs
must show causation, not simply correlation, between the timing
of the litigation and the timing of defendants' resolution of the
contested harm. Sze v. INS, 153 F.3d 1005, 1008 (9th Cir.
1998). On the evidence currently before the court, plaintiffs
have not demonstrated such causation, and it will not be inferred
by this court.
Therefore, the claims of seven named plaintiffs are deemed
mooted by the issuance of documentation of LPR status in their
cases. This modification in the plaintiffs' class representation
has no effect on the viability of the class as a whole. See
Swisher v. Brady, 438 U.S. 204, 213 (1978) (holding that a live
controversy remained, and a class was properly certified, where
the adversity between the defendant and all but one of the named
plaintiff had been mooted). In addition, the court notes that
subsequent resolution of remaining named plaintiffs' claims
following certification of this class will not moot this class
action as whole. See County of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991) (holding that the mootness
of named plaintiffs does not defeat class claims where unnamed
class members continued to present justiciable claims and where
the class has already been certified under Rule 23).
Defendants' last justiciability argument is that the claims of
unnamed future persons seeking LPR status are unripe. This
argument misunderstands ripeness, an Article III doctrine
concerning the timing of judicial intervention in a dispute and
the appropriateness of a matter for declaratory relief. See
Renne v. Geary, 501 U.S. 312, 320, 111 S. Ct. 2331,
115 L. Ed. 2d 288, 301 (1991). By contrast, the inclusion of unnamed class
members who will be affected in the future by a challenged policy
or practice is a common characteristic of class actions seeking
to curtail ongoing harms. See, e.g. I.N.S. v. Nat'l Ctr. for
Immigrant Rights, 502 U.S. 183 (1991) (addressing the merits of
a class action representing "all those persons who have been or
may in the future be denied the right to work pursuant to
8 CFR § 103.6"); Haitian Refugee Center, Inc. v. Nelson,
694 F.Supp. 864, 876-78
(S.D. Fla. 1988) (granting class certification of a class of all persons
who had or would for adjustment of immigration status under a particular
program) aff'd by 872 F.2d 1555 (11th Cir. 1989);
Does 1-5 v. Chandler, 83 F.3d 1150
(9th Cir. 1996) (addressing the merits of a class consisting of
"[a]ll persons who are, have been, or will be identified as
`disabled' under Chapter 346 . . ."); LaDuke v. Nelson,
762 F.2d 1318, 1321, 1332 (9th Cir. 1985) (affirming certification of
a class consisting of "[a]ll persons who have resided or will
reside in particularly described farm housing . . ."); Etuk v.
Blackman, 748 F.Supp. 990, 994 (E.D.N.Y. 1990) (certifying a
class of persons "whose permanent resident cards either have been
or will be confiscated by the INS . . .") aff'd in relevant part
by Etuk v. Slattery, 936 F.2d 1433 (2nd Cir. 1991).
The fact that a class will eventually encompass plaintiffs who
do not currently satisfy the class definition does not defeat
Article III justiciability, subject to the requirements of
standing for current class members. See Sosna v. Iowa,
419 U.S. 393, 402-03 (1975). To interpret the ripeness doctrine
otherwise would preclude claims for injunctive relief on behalf
of any "constantly changing" class, in which new plaintiffs enter the class
definition by virtue of the passage of time. See Sze v. INS,
153 F.3d 1005, 1010 (9th Cir. 1998) (noting the difference
between a justiciable "constantly changing putative class," in
which "some members leave the class and others come in," and a
non-justiciable "constantly shrinking plaintiff class," in which
the contested procedures have been changed and no new plaintiffs
are entering the class). A class may include future members as
long as the court will be able to determine whether an individual
is a class member at any given time. See Probe v. State
Teacher's Ret. Sys., 780 F.2d 776, 780 (9th Cir. 1986); 5 James
Wm. Moore et al., Moore's Federal Practice § 23.31 (3d ed.
2004). In the present action, this court can easily determine
those persons who fall within the class definition, namely,
persons granted LPR status by an EOIR tribunal "to whom USCIS has
failed to issue evidence of registration as a lawful permanent
resident." Ripeness therefore is not a barrier to class
certification in the present action.
Defendants have raised two concerns with respect to the breadth
and clarity of the putative class. They argue, first of all, that
class certification in the current case will conflict with two
other pending lawsuits on similar matters: Lopez-Amor, et al. v.
U.S. Attorney General, et al., No. 04-CV-21685 (S.D. Fla.)
(involving 34 individual plaintiffs served by the Miami, Florida
USCIS district office) and Padilla, et al. v. Ridge, et al.,
No. M 03-126 (S.D. Tex.) (a class action limited to persons
granted LPR status by immigration courts located in Harlingen,
Houston, and San Antonio, Texas). Secondly, defendants argue that
the class definition is unclear on the meaning of "evidence of
Defendants express valid concern about interference with
pending litigation. A district court must ensure that nationwide
class certification will not interfere with litigation of similar
issues elsewhere. See Califano v. Yamasaki, 442 U.S. 682, 702
(1979). However, this concern has been addressed by a
modification in the scope of the class to exclude the relatively
small cluster of plaintiffs represented in Padilla and
Lopez-Amor. Due to the limited geographic scope of the other
cases, the modification of the class in the present action avoids
potential problems of interference and overbreadth. See Ali v. Ashcroft, 346 F.3d 873, 888 (9th
Cir. 2003) (upholding certification of a nationwide class because
the government defendant was applying its policy nationally and
holding that "by defining the class to exclude pending cases,
[the district court] had obviated concerns about impinging on
Defendants' other argument concerning the meaning of "failure
to issue registration" goes to the heart of the merits of this
case, as does any determination of what would constitute
"reasonable delay" in the issuance of evidence of LPR status.
Plaintiffs declare that they received no documentation of their
adjusted status following the EOIR's determination in their
cases. See Plaintiffs' Decls, Exhs A-J. Failure to issue
documentation pre-ADIT processing is not contested between the
parties, as defendants have confirmed that the USCIS is mandated
to perform background checks prior to issuance of LPR
documentation after EOIR adjudication of status. Related issues
remain disputed, such as the necessity of delays between
adjudication to documentation of status and the ministerial
obligation to provide temporary or interim documentation of
status pending background checks. However, these questions are
beyond the scope of the present motion to certify, going to the
heart of the merits of the case and the nature of available
relief. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156,
177-78 (1974) (holding that courts may not review the merits of a
case for purposes of class certification); Moore v. Hughes
Helicopters, Inc., 708 F.2d 475, 480 (9th Cir. 1983) (holding
that investigation of substantive allegations should be limited
to the analysis necessary to perform a rigorous Rule 23
III. Rule 23(a)
Pursuant to Rule 23, the class must be "so numerous that
joinder of all members is impracticable." Fed.R. Civ. P.
23(a)(1). As a general rule, classes numbering greater than 41
individuals satisfy the numerosity requirement. See 5 James Wm.
Moore et al., Moore's Federal Practice § 23.22[b] (3d ed.
2004). Although plaintiffs need not allege the exact number or
identity of class members to satisfy the numerosity prerequisite,
mere speculation as to the number of parties involved is not sufficient to satisfy the numerosity
requirement. See Freedman v. Louisiana-Pac. Corp.,
922 F. Supp. 377, 398 (D. Or. 1996); 7 Wright, Miller, & Kane, Federal
Practice and Procedure § 1762.
Where a class is not so numerous as to establish joinder as
impracticable on its own, other factors such as "the geographical
diversity of class members, the ability of individual claimants
to institute separate suits, and whether injunctive or
declaratory relief is sought, should be considered in determining
impracticability of joinder." Jordan v. Co. of Los Angeles,
669 F.2d 1311, 1319 (9th Cir. 1982), vacated on other grounds by
459 U.S. 810 (1982). The economic and legal resources of the
plaintiff class may be a factor in determining the practicality
of joinder. See Sherman v. Griepentrog, 775 F.Supp. 1383,
1389 (D. Nev. 1991) (holding that poor, elderly plaintiffs
dispersed over a wide geographic area could not bring multiple
lawsuits without great hardship). In addition, the inclusion of
unknown future class members supports the impracticality of
Plaintiffs have provided evidence of more than 49
removal-adjusted LPRs in five states who satisfy the putative
class definition. See Bauerle Decl., Exh. K ¶ 11 (attorney
declaration asserting representation of 11 immigrants satisfying
the class definition); Bratton Decl., Exh. L ¶ 5 (attorney
declaration asserting representation of 20 immigrants satisfying
the class definition); Calero Decl., Exh. M ¶ 5 (attorney
declaration asserting representation of 15 immigrants satisfying
the class definition); Neugebauer Decl., Exh. N ¶ 11 (attorney
declaration asserting representation of 3 immigrants satisfying
the class definition); and Pradis Decl., Exh. O ¶ 5 (attorney
declaration asserting representation of "several" immigrants
satisfying the class definition). Plaintiffs assert that these
putative class members are a minimal cross section of the
nationwide class, which may exceed 20,000 based on estimates from
2003 statistics. See Department of Justice, Executive Office of
Immigration Review, FY 2003 Statistical Year Book, Exh. P
(documenting the number of persons grated LPR status in removal
proceedings in fiscal year 2003).
Plaintiffs contend that due to the geographic diversity and the
scale of the putative class, joinder would be impracticable. This
court agrees. Defendants have acknowledged that the contested
policies and procedures are national in application, and thus
apply to all immigrants seeking documentation of adjusted status after adjudication by an
EOIR court. See Sposato Decl. ¶¶ 2-3, ¶¶ 6-12. Indeed, based on
plaintiffs' evidence estimating the total class size, the
nationwide class of affected persons must be substantial. See
Westcott v. Califano, 460 F.Supp. 737, 744 (D.Mass. 1978),
aff'd, 443 U.S. 76 (1979) (holding that a court may draw a
reasonable inference of class size from the facts before it).
Defendants' contention that plaintiffs must identify the
percentage of their clients who have not received timely evidence
of registration is irrelevant to the court's determination at
this stage, and it contradicts defendants' own acknowledgment of
current lag times between adjudication and documentation.
Furthermore, assessment of the legality or reasonableness of any
given delay goes directly to the merits of this action.
Plaintiffs also contend that individual class members lack the
ability to institute individual actions because they tend to
possess limited economic resources and fear retaliation for
filing suit. See, e.g., Bauerle Decl., Exh. K ¶ 19. Limited
economic resources may indeed limit the ability of class members
to bring individual lawsuits and provide one factor in assessing
whether joinder is impracticable. See Lynch v. Rank,
604 F.Supp. 30, aff'd, 747 F.2d 528 (9th Cir. 1984). The court has
no information on which to base a finding regarding the economic
welfare of class members, and therefore the practicality of
joinder will not be assessed on that basis. However, the court
acknowledges the probability that such evidence weighs in
plaintiffs' favor under the Lynch standard.
The court thus finds that plaintiffs have satisfied their
burden to show that joinder of removal-adjusted LPRs, both
current and future, would be impracticable, and thus, this
requirement of their Rule 23 motion is satisfied.
To fulfill the commonality prerequisite of Rule 23(a)(2),
plaintiffs must establish that there are questions of law or fact
common to the class as a whole. Rule 23(a)(2) does not mandate
that each member of the class be identically situated, but only
that there be substantial questions of law or fact common to all.
See Harris v. Palm Spring Alpine Estates, Inc., 329 F.2d 909,
914 (9th Cir. 1964). Individual variation among plaintiffs' questions of law
and fact does not defeat underlying legal commonality, because
"the existence of shared legal issues with divergent factual
predicates is sufficient" to satisfy Rule 23. Hanlon v. Chrysler
Corp., 150 F.3d 1011, 1019 (9th Cir. 1998).
In the present action, plaintiffs challenge the USCIS's
national practices following a grant of LPR status by the EOIR
assert that USCIS has a duty to issue documentation evidencing
that adjusted status in a timely manner. They share substantially
identical questions of law, and factual differences within the
class are immaterial. All of the proposed class members in this
action were adjudicated to be LPRs by a court of the EOIR, either
an immigration judge or the Bureau of Immigration Appeals. The
fact that named plaintiffs came through the former process and
not the latter is an immaterial difference, as by defendants'
description of current processes, all "defensive" adjustments of
status commencing with an EOIR determination are handled the same
way. See Sposato Decl. ¶¶ 2, 6-9. It is clear that all
plaintiffs, whether present or future members of the class, are
challenging the legality of the same government program and thus
inherently share common issues. See, e.g., LaDuke v.
Nelson, 762 F.2d 1318, 1332 (9th Cir. 1985) (holding that the
constitutionality of an INS procedure "plainly" created common
questions of law and fact).
Defendants' arguments against commonality turn on the merits of
plaintiffs' arguments, i.e. whether the time taken to complete
background checks is "reasonable and lawful" and whether
defendants are fulfilling their "duty" to issue evidence of
status. However, this court again determines that the
reasonableness and legality of defendants' policies and practices
are the very essence of this case, and not matters for the court
on a motion for class certification.
Therefore, the plaintiffs have satisfied the commonality
requirement of Rule 23 (a)(2).
Under Rule 23(a)(3), the claims of the representative
plaintiffs must be typical of the claims of the class. To be
considered typical for purposes of class certification, the named
plaintiffs need not have suffered an identical wrong. See
Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998).
Rather, the class representative must be part of the class and
possess the same interest and suffer the same injury as the class members. See General
Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 156
(1982). As under Rule 23(a)(2), where a plaintiff class
challenges government policies or practices, named plaintiffs
will be found typical of the class if they allege similar harms
as the class. See, e.g., Hodgers-Durgin v. De La Vina,
165 F.3d 667, 679 (9th Cir. 1999) (harms to class representatives
found typical of those of other class members in case alleging
unconstitutional patterns and practices by border patrol agents).
The named plaintiffs in this action allege a range of harms
relating to access to educational benefits, employment
authorization, travel privileges, public benefits, and other
consequences of immigration status which would be typical of any
individual who has been adjudged an LPR, but lacks documentation
of that status. This typicality resides equally with future
members of the class, as defendants do not contest the
continuation of current policies for the indefinite future.
According to the defendants' description of current polices for
"defensive" adjudications of immigration status (i.e.,
adjudication by an EOIR tribunal), all class members must undergo
a background check. See Sposato Decl. ¶¶ 1-12. Future members
of the class thus will share the same questions regarding their
immigration status pending the check, or the timeliness or
reasonableness of delays in documentation. The absolute length of
time required to complete a background check will certainly vary
(for instance, because of backlogs, or because the results of a
past security check of an immigrant remain current). However,
these differences are immaterial for purposes of class
typicality, which is concerned with the class members' shared
interests and harms. See generally General Telephone Co. of
the Southwest v. Falcon, 457 U.S. 147, 156 (1982).
Thus, plaintiffs satisfy the requirements of Rule 23(a)(3).
D. Adequacy of Representation
Rule 23(a)(4) dictates that the representative plaintiffs must
fairly and adequately protect the interests of the class. To
satisfy constitutional due process concerns, absent class members
must be afforded adequate representation before entry of a
judgment which binds them. See Hanlon, 150 F.3d at 1020
(citing Hansberry v. Lee, 311 U.S. 32, 42-43 (1940)).
"Resolution of two questions determines legal adequacy: (1) do the named plaintiffs and their
counsel have any conflicts of interest with other class members
and (2) will the named plaintiffs and their counsel prosecute the
action vigorously on behalf of the class?" Id.
This court finds no conflicts of interest between the named and
absent class members, as all plaintiffs seek injunctive relief to
provide documentation of status for the benefit of the entire
class. The seven named plaintiffs who received documentation of
their LPR status prior to commencement of this action have been
eliminated as class representatives, and thus their commitment to
advocating for unnamed class members is no longer at issue.
The court has confidence in the ability of both the named class
members and their counsel to vigorously pursue the present
action, and thus Rule 23(a)(4) is satisfied.
II. Rule 23(b)
Even if a putative class of plaintiffs satisfy the
prerequisites of Rule 23(a), they cannot satisfy their burden to
establish that the action is maintainable as a class under Rule
23 unless they meet one of the three categories described in Rule
23(b). Plaintiffs argue that they meet the requirements of
A. Rule 23(b)(2)
Rule 23(b)(2) requires that "the 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). In the present action,
defendants describe a set of national policies and practices in
place for background and security checks prior to issuance of
documentation of adjusted LPR status, and thus implicitly
acknowledge a set of actions "generally applicable to the class."
See Sposato Decl. ¶¶ 1-13. Defendants' semantic argument over
whether they acted or refused to act is irrelevant; whether the
challenged conduct is characterized as the failure to issue
documentation (a refusal to act) or the application of security
procedures prior to issuance of documentation (an action), it
easily falls within the scope of Rule 23(b)(2). Plaintiffs seek injunctive
relief to change these national policies and practices, and thus
plainly satisfy the dual requirements of Rule 23(b)(2).
Based upon the foregoing, IT IS HEREBY ORDERED that:
1) Plaintiffs' motion to certify a class is GRANTED.
2) The class consists of all persons who were or will be
granted lawful permanent resident status by the EOIR, through the
Immigration Courts or the Board of Immigration Appeals of the
United States, and to whom USCIS has failed to issue evidence of
registration as a lawful permanent resident, with the exception
that the class excludes the 34 named plaintiffs in Lopez-Amor v.
U.S. Attorney General, No. 04-CV-21685 (S.D. Fla.) and the
plaintiff class in Padilla v. Ridge, No. M 03-126 (S.D. Tex.).
3) The named class representatives are: Maria Santillan, Flora
Rodriguez Santillan, and Jamie Rodriguez Santillan.
4) The counsel of named plaintiffs is counsel for the class.
IT IS FURTHER ORDERED that counsel shall confer and submit a
proposed class notice in compliance with this order within thirty
(30) days of the date of this order.
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