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October 12, 2004.

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; Exh. 1-6.


  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").

  A. Standing

  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).

  B. Mootness

  "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).

  C. Ripeness

  "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).

  II. Overbreadth

  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 broadly").

  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 ...

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