Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nightingale v. U.S. Citizenship and Immigration Services

United States District Court, N.D. California

October 15, 2019

ZACHARY NIGHTINGALE, et al., Plaintiffs,


          William H. Orrick United States District Judge.


         Plaintiffs challenge the systematic delay noncitizens face in obtaining access to immigration case files maintained by the U.S. Department of Homeland Security (“DHS”), and its component agencies, U.S. Citizenship and Immigration Services (“USCIS”) and U.S. Immigration and Customs Enforcement (“ICE”) (collectively “defendants”). These files, commonly referred to as Alien Registration Files (“A-Files”), contain documents relating to all interactions that a noncitizen has had with the immigration system, and therefore are critical to defending against removal or determining eligibility for immigration benefits.

         The only way a noncitizen can obtain an A-File is by submitting a Freedom of Information Act (“FOIA”) request from the same agency adjudicating their case. Congress mandated that FOIA requests must be answered within 20 business days. Adherence to this statutorily prescribed time frame is especially important for A-File FOIA requests, yet while defendants push to accelerate adjudication of immigration cases they routinely fail to timely provide noncitizens a copy of their A-Files. For people attempting to navigate our complex immigration system, often without counsel and in danger of deportation, this is a serious impediment.

         While this may be the first class action addressing defendants' systematic failure of making timely determinations on A-File FOIA requests, plaintiffs have shown that class certification is appropriate in these extraordinary circumstances. Plaintiffs have established that noncitizens nationwide experience significant delays in obtaining their A-Files and that such delays are harmful to their immigration cases. Accordingly, I GRANT plaintiffs' motion for class certification because a single injunction or declaratory judgment would provide relief to each member of the proposed classes - the timely determination of their time-sensitive A-File FOIA requests.


         A. Importance of Timely Obtaining A-Files

         Defendants possess A-Files that contain information that is critical to determining a noncitizen's eligibility to apply for an immigration benefit, to change their existing immigration status, to defend against removal, to work, and to travel freely. Complaint (“Compl.”) [Dkt. No. 1] ¶ 2; Motion for Class Certification (“Mot.”) [Dkt. No. 28] 1. The information includes an “individual's past interactions with immigration agencies and petitions and/or applications previously filed by or on behalf of the individual.” Compl. ¶ 41; see also Id. ¶¶ 43-50 (listing examples of how A-Files are vital in different immigration situations, such as applying for lawful permanent resident status, asylum, or rebutting charges in removal proceedings).

         The only way a noncitizen or his or her attorney can obtain a copy of an A-File is to submit a FOIA request. Id. ¶¶ 41, 46; Mot. 3. Noncitizens in removal proceedings particularly rely on FOIA requests because discovery is not available. Id. ¶ 41; Mot. 3. Consequently, obtaining A-Files from defendants is critical in immigration cases; delays in obtaining A-Files leave noncitizen and their attorneys “in legal limbo” that inflicts substantial hardship. Id. ¶ 7; Exs. A1-A14, Exhibits to Motion for Class Certification [Dkt Nos. 28-3-28-16] (multiple declarations submitted by immigration attorneys across the nation attesting to distinct disadvantage faced by noncitizens due to delays in A-File FOIA requests); see, e.g., Ex. A1, Nightingale Decl. ¶ 13 (longer detention for clients in removal proceedings); Ex. A14, Phelps Decl. ¶ 5 (risk of deportation for clients who are left without proof of status as they wait to file applications for relief until they obtain A-Files); Ex. A10, Hansen Decl. ¶ 7 (prolonged family separation for clients who have to wait longer for their naturalization cases to be approved in order to file “immediate relative” visa petitions); Ex. A6, Hall Decl. ¶ 10 (inability to travel to visit sick family because of risks associated with re-entry while cases are still pending); Ex. A10, Hansen Decl. ¶ 8 (loss of access to public assistance such as Social Security Income and housing without proof of immigration status); Ex. A7, Asch Decl. ¶ 8 (increased attorney costs because many clients are forced to file lawsuits in federal district court in order to obtain their A-Files).

         Noncitizens seeking their records without the assistance of counsel are especially disadvantaged by delays. Mot. 4. For those who are represented by counsel, their attorneys need A-Files to effectively prepare them for interviews or hearings, and effectively litigate appeals. Id.; see, e.g., Ex. A7, Asch Decl. ¶ 3 (attorneys are duty-bound to make reasonable inquiry into the applicable facts of a case, but are unable to do so without A-Files); Ex. A1, Nightingale Decl. ¶ 8 (the Board of Immigration Appeals does not provide a copy of the written record, only the transcript of the hearing). Without A-Files, noncitizens are at risk of having their applications for immigration benefits denied based on a statement or testimony considered to be inconsistent with a previous statement in the A-File. Mot. 5; see, e.g., Ex. A1, Nightingale Decl. ¶ 14 (immigration attorneys need A-Files to avoid risk of being accused of misrepresentation if clients were to make innocent mistake that turns out to be inconsistent with prior information or documents in the A-File). A-Files also contain reasons why previous applications were denied, and such information is crucial in determining eligibility for future benefits or relief from deportation. Mot. 5; see, e.g., Ex. A14, Phelps Decl. ¶ 11 (attorneys cannot respond to allegations that ICE has made against their clients without knowing the factual basis for the allegation or being able to review the evidence being used against the client).

         Delays in obtaining A-Files also put noncitizens at risk of missing other competing deadlines. See, e.g., Ex. A1, Nightingale Decl. ¶ 12 (asylum applications must be filed within one year of arrival); Id. ¶ 13 (removal proceedings for detained noncitizens are normally expedited and expected to move much faster than proceedings for non-detained noncitizens); Id. ¶ 8 (BIA appeal process will proceed on its own timeline independent of any response to FOIA request); Ex. A2, David Decl. ¶ 6 (risk of missing statutory deadlines to file motions in immigration court without first obtaining A-File); Ex. A6, Hall Decl. ¶ 10 (noncitizens must have their applications for cancellation of removal adjudicated before their child's 21st birthday because only children under the age of 21 count as qualifying relatives). Processing delays in production of A-Files are especially harmful given the recent changes in immigration policy that accelerate adjudication timelines. See Ex. A6, Hall Decl. ¶ 8 (“Between the case completion goals [of 60 days for detained cases and one year for non-detained cases], and the new precedent discouraging the use of continuances, immigration judges are under extreme pressure to quickly complete cases.”); Ex. A6, Hall Decl. ¶ 9 (immigrations judges are not typically willing to delay due to counsel's need to first receive and review the results of an A-File FOIA request).

         Requests for continuances due to delays in obtaining A-Files can also be risky because it can lead to outright denial of the application. Mot. 4; see, e.g., Ex. A1, Nightingale Decl. ¶ 11 (postponing naturalization interview because of delays in obtaining A-Files can possibly cause USCIS to simply deny that application); Ex. A12, Falgout Decl. ¶ 7 (immigration judge ordered attorney to file any application for relief by deadline or applications would be deemed waived). The agency from which noncitizens seek A-Files is the same agency that has the authority to deny requests for continuances. See, e.g., Ex. A8, Taurel Decl. ¶ 8 (client unable to timely obtain A-File from FOIA request sent to USCIS, but USCIS denied second request to postpone naturalization interview stating that failure to appear would lead to denial of her application).

         B. Plaintiffs' “Pattern or Practice” Claim

         Plaintiffs are three immigration attorneys who regularly file A-File FOIA requests on behalf of their clients, and two noncitizens who have filed A-File FOIA requests from defendants. Id. ¶ 1. Plaintiffs allege that defendants have a “pattern or practice” of failing to answer these requests within the statutory deadline set under FOIA. Id. ¶ 23. The FOIA statute requires that an agency make a determination on a FOIA request within 20 business days. Id. ¶ 21 (citing 5 U.S.C. § 552(a)(6)(A)(i)). An agency may extend its response time in case of “unusual circumstances, ” by no more than 10 business days provided it sends the requestor “written notice.” Id. ¶ 22 (citing 5 U.S.C. § 552(a)(6)(B)(i)). All plaintiffs had A-File FOIA requests that were pending with defendants without a determination for more than 30 days at the time the Complaint was filed. Id. ¶¶ 53 (several), 56 (at least three), 59 (at least seven), 60 (one), 61 (one).

         Plaintiffs assert that defendants have failed to comply with this statutory time frame and that some of them have waited for more than a year. See, e.g., Id. at ¶ 62 (noncitizen plaintiff Maribel Caradang's FOIA request has been pending for over a year); ¶ 60 (noncitizen plaintiff Pao Lopa's FOIA request has been pending for more than seven months); ¶¶ 53, 56, 59 (attorney plaintiffs Zachary Nightingale, Courtney McDermed, and Cheryl David currently have multiple FOIA requests filed on behalf of their clients that have been pending for more than 30 days).

         USCIS' FOIA backlog-the number of requests that have gone unanswered past the statutory deadline-has more than doubled in the last few years. Id. ¶¶ 4, 23.[1] The FY 2018 DHS FOIA Report indicates that there were 41, 329 pending requests in the USCIS backlog and at least 17, 043 referrals unaccounted for by ICE in the most recent fiscal year, which are in addition to the ICE backlog total of 1, 332 pending requests. Id. ¶ 63. DHS has not disclosed how many of these pending requests are for A-Files, but plaintiffs estimate that the number of pending A-file FOIA requests with defendants are in the thousands. Id. ¶ 66.

         When USCIS finally responds to A-File FOIA requests, plaintiffs claim that “it routinely fails to produce the entire A-File because portions are referred to ICE for it to make a determination about disclosure.” Id. ¶ 27. Even then, the DHS regulations make clear that FOIA requests will be handled based on when the request was initially received “by the first component or agency, not any later date.” Id. ¶ 28 (citing Responsibility for Responding to Requests, 6 C.F.R. § 5.4(g) (2019)). But, plaintiffs assert, ICE also regularly exceeds the 20-business day statutory timeframe for making determinations. Id. ¶ 29.

         Plaintiffs allege that DHS holds ultimate responsibility for USCIS's and ICE's pattern or practice of failing to make timely determination in response to A-File FOIA requests. Id. ¶ 38. Plaintiffs assert that DHS has “failed to ensure that its components made reasonable progress in clearing out their backlogs, ” and has “failed to ensure sufficient resources are allocated by each component to address their FOIA backlogs.” Id. In 2015, DHS and another one of its component agencies, U.S. Customs and Border Protection (“CBP”), were sued in this District over similar nationwide pattern or practice of failing to timely respond to FOIA requests. Id. ¶ 39; see Brown v. U.S. Customs & Border Prot., 132 F.Supp.3d 1170 (N.D. Cal. 2015). The court denied dismissal of that action because it found that plaintiffs had “describe[d] a longstanding and pervasive practice of unreasonable delay in CBP's response to FOIA requests” and that DHS and CBP's failure to meet statutory response deadlines was an “actionable violation of FOIA.” Compl. ¶ 39 (citing to Brown, 132 F.Supp.3d at 1172, 1174). That case ultimately settled after CBP decreased its backlog significantly over the course of the litigation. Id. Plaintiffs assert that the present lawsuit makes similar claims and seeks similar relief. Id.[2]


         On June 16, 2019, plaintiffs filed this class action lawsuit, claiming that defendants' pattern or practice of failing to meet the statutory deadline with respect to A-File FOIA requests violates FOIA. Compl. ¶¶ 73-80. Plaintiffs seek declaratory relief that defendants' failure to make timely determinations on plaintiffs' and proposed classes' A-File FOIA requests violates FOIA, and nationwide injunction requiring defendants to make timely determinations. Compl. ¶ 63. On July 31, 2019, defendants filed an answer, denying each and every allegation in the Complaint. Answer [Dkt. No. 25]. Subsequently, on August 8, 2019, plaintiffs filed a motion seeking certification of the following two classes:

USCIS Class: All individuals who filed, or will file, A-File FOIA requests with USCIS which have been pending, or will be pending, with USCIS for more than 30 business days without a determination. ICE Referral Class: All individuals who filed, or will file, A-File FOIA requests with USCIS that USCIS has referred, or will refer, to ICE and which have been pending, or will be pending, for more ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.