Nightingale v. USCIS, No. 19-03512, 2019 WL 5191066 (N.D. Cal. Oct. 15, 2019) (Orrick, J.)

Nightingale v. USCIS, No. 19-03512, 2019 WL 5191066 (N.D. Cal. Oct. 15, 2019) (Orrick, J.)

Re:  "[C]hallenge the systematic delay noncitizens face in obtaining access to immigration case files"

Disposition:  Granting plaintiff's motion for class certification

• Litigation Considerations:  The court grants plaintiffs' motion for class certification.  The court relates that "[t]he only way a noncitizen can obtain an [Alien Registration File ("A-Files") which "contain documents relating to all interactions that a noncitizen has had with the immigration system,"] is by submitting a [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."  The court "find[s] that plaintiffs have met their burden for certification of both the USCIS Class and the ICE Referral Class."  First, the court "find[s] that plaintiffs have sufficiently shown numerosity."  The court relates that "Plaintiffs provide various declarations of immigration attorneys that itself show at least 173 A-File FOIA requests filed on behalf of noncitizens have been pending with USCIS for more than 30 business days without a determination, and at least 139 A-File FOIA requests that USCIS has referred to ICE and have been pending for more than 30 business days."  "Plaintiffs also point to the backlogs reported by DHS as evidence that defendants know the exact number of class members who have not received a timely determination."  "Defendants concede that in FY 2019, approximately 98 percent of requests submitted to USCIS sought A-File material."  Second, the court finds that "plaintiffs have made a sufficient showing to establish commonality."  The court finds that "Plaintiffs have shown, through multiple declarations of immigration attorneys across the nation, that (1) defendants' violation of FOIA is not merely an isolated incident, (2) plaintiffs and many other similarly situated people have been personally harmed by the alleged practice, and (3) proposed class members include those who will be subjected to defendants' delays in the future when they file A-File FOIA requests."  "At this stage, plaintiffs are not required to show that they will prevail on their underlying pattern or practice claim, but this showing is enough to establish commonality for class certification."  Third, the court finds that "Plaintiffs have met the typicality requirement for both of the proposed classes."  The court finds that "plaintiffs and proposed class members have filed or will file A-File FOIA requests to defendants who are required to make timely determinations pursuant to the timeframe set forth in 5 U.S.C. § 552(a)(6)(A)(i)."  "Thus, plaintiffs seek the same relief that members of the proposed class would seek:  the timely determination of their A-File FOIA requests."  Fourth, the court "find[s] plaintiffs and Class Counsel 'will fairly and adequately protect the interests of the class.'"  The court explains that "[b]oth plaintiffs and proposed class members have a shared interest in ensuring that defendants make determinations in response to their A-File FOIA requests within the statutory time period."  Finally, the court relates that "Plaintiffs also must meet one of the requirements of [Federal Rules of Civil Procedure] Rule 23(b) for a class action to be certified."  "Rule 23(b)(2) . . . requires them to show that 'the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.'"  The court finds that "plaintiffs seek an injunction that meets the Rule 65(d) specificity requirement because they specifically seek to order defendants to make a determination on outstanding A-File FOIA requests."  "Therefore, plaintiffs have met the requirement of Rule 23(b)(2)."  "A single injunction or declaratory judgment would provide relief to each member of the proposed classes – the timely determination on their time-sensitive A-File FOIA requests."