Nightingale v. U.S. Citizenship and Immigration Services

Background

The plaintiffs—three immigration attorneys and two noncitizens—alleged that the Department of Homeland Security, U.S. Citizenship and Immigration Services, and U.S. Immigration and Customs Enforcement routinely failed to make timely decisions on requests for Alien Registration Files. These files contain records of a noncitizen’s interactions with the immigration system and can be important to applications for immigration benefits, preparation for hearings, defense against removal, work, and travel.

The Freedom of Information Act generally requires an agency to make a determination on a request within 20 business days. The agency may receive up to 10 additional business days for unusual circumstances if it gives the requester written notice. The plaintiffs alleged that requests often remained pending for months or more than a year, causing problems such as longer detention, risks of deportation, missed deadlines, family separation, and increased legal costs.

Proposed Classes

The plaintiffs sought certification of two classes under Federal Rule of Civil Procedure 23(b)(2):

1. The USCIS Class: individuals who filed, or will file, requests for Alien Registration Files with U.S. Citizenship and Immigration Services that remained, or will remain, pending for more than 30 business days without a determination. 2. The ICE Referral Class: individuals whose requests for Alien Registration Files were referred, or will be referred, by U.S. Citizenship and Immigration Services to U.S. Immigration and Customs Enforcement and remained, or will remain, pending for more than 30 business days from the original filing without a determination.

The requested relief included a declaration that the alleged failure to make timely determinations was unlawful, an order requiring determinations on backlogged requests within 60 days or another period set by the court, and an injunction requiring compliance with the statutory deadlines.

Court’s Analysis

For class certification, Rule 23(a) requires numerosity, common questions, typical claims, and adequate representation. Rule 23(b)(2) additionally requires that the defendant have acted or refused to act on grounds generally applicable to the class, so that one injunction or declaration can provide relief to the class as a whole.

The court found numerosity because the evidence identified at least 173 requests pending with U.S. Citizenship and Immigration Services for more than 30 business days, along with evidence of additional backlogs and many affected attorneys and noncitizens. The court found commonality because the central issue was the alleged agency-wide practice of failing to make timely determinations, rather than the different facts contained in individual files.

The court found typicality because the named plaintiffs and proposed class members sought the same relief for the same alleged course of conduct. It also found adequacy because the plaintiffs and their counsel shared the class members’ interest in obtaining timely determinations, had no identified conflicts, and were represented by counsel experienced in immigration and class-action litigation.

Finally, the court found that Rule 23(b)(2) was satisfied because a single injunction or declaratory judgment addressing the alleged pattern of untimely responses could provide relief to every class member. The court stated that certification did not depend on resolving the individual circumstances of each file or deciding the merits of the underlying pattern-or-practice claim.

Disposition

Judge William H. Orrick granted the plaintiffs’ motion for class certification as to both the USCIS Class and the ICE Referral Class.