Case 1:08-cv-02354-LMM-KNF Document 39 Filed 06/19/2008 Page 98 of 100 - 86 - Stipulation of Settlement and Release, at ¶ 2 (CIS006249). Pursuant to this settlement, all class members released all claims “that were asserted or could have been asserted by Class Members or anyone acting on behalf of or in place of a Class Member, based upon the facts alleged or that could have been alleged in the Amended Complaint relating to the subject of this action, including but not limited to the Due Process, Equal Protection, and APA claims related to the subject matter of the Kaplan case,” except for “individual” (i.e., non-class) actions brought pursuant to 8 U.S.C. § 1447(b) and certain actions under the Social Security laws. Id.

In this case, USCIS is not required to take action on Plaintiff’s naturalization application during the background check process, and prior to the applicant’s interview by USCIS. As discussed above, there is no clear, nondiscretionary duty Case 4:16-cv-01015-DW Document 8 Filed 01/23/17 Page 16 of 22 17 on USCIS to adjudicate naturalization applications prior to the applicant’s interview – the only trigger for the 120-day period under 8 U.S.C. § 1447(b). Third, an action seeking to compel agency action pursuant to the APA is subject to the same practical considerations as an action in mandamus.

It consists of all class members whose naturalization applications have not been adjudicated within 120 days of the date of their initial examinations. The expiration of this time period gives these individuals an additional, common cause of action under 8 U.S.C. § 1447(b). When a sub-group of a proposed class has an additional statutory claim, certification of a sub-class is appropriate.

See Heckler, 467 U.S. at 119 (emphasizing the “intention of Congress”). Because this Court has properly held that the applicable statute, 8 U.S.C. § 1447(b), does not mandate agency action by a particular date, see Aug. 7 Decision at 16:19-23, and indeed because a long history of Congressional legislation in the area demonstrates Congress’s intention not to address backlogs through the imposition of deadlines, see supra n.9; Def. Opening Mem.

3 supports an APA Section 706(1) claim for the proposed subclass should be rejected for several independently dispositive reasons. A. No Jurisdiction Exists for the Proposed Subclass’s APA Section 706(1) Claim As explained in the Government’s opening memorandum, no jurisdiction exists for the subclass to pursue relief under APA Section 706(1), because Congress has provided the subclass with an adequate alternative remedy pursuant to 8 U.S.C. § 1447(b). See Def.

Plaintiff’s application for naturalization was then denied on October 9, 2007 based on alleged evidence in his alien registration file. Plaintiff filed an appeal of this decision under 8 U.S.C. §1447(a) on or about November 9, 2007 and requested a hearing . That hearing has not yet taken place.

ir Motion to Dismiss in Part and Remand in Part, or, in the Alternative, for Summary Judgment, and in Opposition to Plaintiffs’ Motions for a Preliminary Injunction and Class Certification, dated June 19, 2008; Defendants’ Statement Pursuant to Local Civil Rule 56.1(a), dated June 19, 2008; the Declaration of Robert William Yalen, dated June 19, 2008; the Declaration of David J. Keevis, dated June 19, 2008; and the Declaration of Michael A. Cannon, dated June 6, 2008; and upon all the pleadings and other papers filed in this action, defendants, Case 1:08-cv-02354-LMM-KNF Document 38 Filed 06/19/2008 Page 1 of 3 - 2 - by their attorney, Michael J. Garcia, United States Attorney for the Southern District of New York, will move this Court before the Honorable Lawrence M. McKenna, United States District Judge, for an order dismissing the complaint in part pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure and remanding the case in part pursuant to 8 U.S.C. § 1447(b), or, in the alternative, granting defendants summary judgment pursuant to Rule 56, and for such other relief as the Court deems just. Dated: New York, New York June 19, 2008 MICHAEL J. GARCIA United States Attorney for the Southern District of New York By: /s/ Robert William Yalen TOMOKO ONOZAWA KIRTI VAIDYA REDDY ROBERT WILLIAM YALEN Assistant United States Attorneys 86 Chambers Street New York, New York 10007 Tel.: (212) 637-2751 (Reddy) Tel.: (212) 637-2721 (Onozawa) Tel.: (212) 637-2722 (Yalen) Fax: (212) 637-2687 E-mail: kirti.reddy@usdoj.gov E-mail: robert.yalen@usdoj.gov E-mail: tomoko.onozawa@usdoj.gov TO: Richard Slack, Esq. Weil Gotshal & Manges LLP Attorney for Plaintiffs Foster Maer, Esq. Puerto Rican Legal Defense and Education Fund Attorney for Plaintiffs Case 1:08-cv-02354-LMM-KNF Document 38 Filed 06/19/2008 Page 2 of 3 - 3 - Jason Parkin, Esq. New York Legal Assistance Group Attorney for Plaintiffs Case 1:08-cv-02354-LMM-KNF Document

; Yu, 36 F. Supp. 2d at 932; Agbemaple v. INS, Slip Copy, 1998 WL 292441, at *2 (N.D. Ill. May 18, 1998); see also Gelfer, 2007 WL 90382, at *3 (“Relief under mandamus and the APA are virtually equivalent when a petitioner seeks to compel an agency to act on a nondiscretionary duty.”); cf., e.g., Danilov, 370 F. Supp. 2d at 445 (finding the APA inapplicable because “this matter is controlled by the specific grant of subject matter jurisdiction set forth in 8 U.S.C. § 1447(b),” which sets forth a specific 120-day deadline for completion of agency action). Case 1:07-cv-00422-RMC Document 14 Filed 06/19/2007 Page 22 of 38 23 Furthermore, timely adjudication of discretionary decisions is a fundamental requirement of the APA and is distinct from non-reviewability of actions “committed to agency discretion by law,” pursuant to 5 U.S.C. § 701(a)(2).

See 8 U.S.C. §§ 1421(c); 1447(a). -5- proceedings on the merits of Mr. Muntasser's petition has not yet occurred; (2) there is no statute of limitations preventing Mr. Muntasser from simply refiling a petition for naturalization upon final disposition of the federal criminal charges against him, see 8 U.S.C. § 1447(b) (2000); and (3) a federal court will now try, to a criminal proof standard, charges which may, if Mr. Muntasser is convicted, control a subsequent naturalization determination as a matter of law.3 Moreover, Mr. Muntasser has failed to identify himself as a potential witness in his naturalization proceedings. Inasmuch as Mr. Muntasser has the burden of establishing that he meets each and every requirement for naturalization, see Berenyi, 385 U.S. at 637 (stating that it is "universally accepted that the burden is on the alien applicant to show his eligibility for citizenship in every respect[,]" and any "doubts should be resolved in favor of the United States and against the claimant") (internal quotation marks and citation omitted), Respondents maintain that Mr. Muntasser cannot prevail without testifying in support of his application.

If no federal jurisdiction exists, the court must remand the case back to the state court from where it was removed. 8 U.S.C. § 1447(c). Federal Jurisdiction must exist on the face of the complaint at the time of removal.