UNITED STATES DISTRICT COURT FOR THE DISTRICT OF …€¦ · Case 1:17-cv-00998-ESH-RMM Document 128 Filed 04/03/18 Page 8 of 39 MSSD is the culmination of DoD’s enhanced background

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KUSUMA NIO, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

) ) ) ) ) ) ) ) ) ) ) ) )

Civil Action No. 1:17-00998-ESH-RMM

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR A TEMPORARY

RESTRAINING ORDER AND MOTION FOR A PRELIMINARY INJUNCTION

Case 1:17-cv-00998-ESH-RMM Document 128 Filed 04/03/18 Page 1 of 39

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TABLE OF CONTENTS INTRODUCTION..........................................................................................................................1

FACTS ............................................................................................................................................2 I. USCIS Continues To Apply Its Lawful July 7 Guidance. ..............................................2 II. Naturalization at Basic Training Initiative .....................................................................6 III. FBI Background Checks ...................................................................................................7 STANDARD OF REVIEW ...........................................................................................................8 ARGUMENT. ...............................................................................................................................10 I. A Preliminary Injunction Is Not A Tool For Preliminary Adjudication On The

Merits ................................................................................................................................10 II. Plaintiffs Cannot Show A Likelihood Of Success On The Merits ...............................13

A. USCIS is complying with its July 7 Guidance .......................................................13

B. USCIS’s FBI Background Check Procedure is Required by Law .........................19 i. FBI background check procedure is not a final agency action. .................19

ii. FBI background check procedures do not “unlawfully withhold or unreasonably delay” naturalization applications .......................................24

III. Plaintiffs Have Not Established Irreparable Harm ......................................................26

IV. Hardship To Defendants And The Public Interest Weigh Heavily Against Entry Of A Preliminary Injunction ................................................................................................30 CONCLUSION ............................................................................................................................31 CERTIFICATE OF SERVICE ..................................................................................................33


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TABLE OF AUTHORITIES

CASE LAW

Aamer v. Obama,

742 F.3d 1023 (D.C. Cir. 2014) .................................................................................................. 9 Apotex, Inc. v. FDA,

449 F.3d 1249 (D.C. Cir. 2006) .................................................................................................. 9 Ark. Dairy Co-Op Ass’n, Inc. v. USDA,

573 F.3d 815 (D.C. Cir. 2009) .................................................................................................... 9 *Bennett v. Spear,

520 U.S. 154 (1997) .................................................................................................................. 20 Brown v. Chote,

411 U.S. 452 (1973) .................................................................................................................. 10 Brown v. District of Columbia,

888 F. Supp. 2d 28 (D.D.C. 2012) ............................................................................................ 26 Center for Auto Safety v. National Highway Traffic Safety Administration,

452 F.3d 798 (D.C. Cir. 2006) .................................................................................................. 20 Chaplaincy of Full Gospel Churches v. England,

454 F.3d 290 (D.C. Cir. 2006) .......................................................................................... 8, 9, 26 City of Moundridge v. Exxon Mobil Corp.,

429 F.Supp.2d 117 (D.D.C. 2006) ............................................................................................ 10 CityFed Fin. Corp. v. Office of Thrift Supervision,

58 F.3d 738 (D.C. Cir. 1995) .................................................................................................... 10 Davis v. Pension Benefit Guar. Corp.,

571 F.3d 1288 (D.C. Cir. 2009) .................................................................................................. 9 Dorfmann v. Boozer,

414 F.2d 1168 (D.C. Cir. 1969) .................................................................................................. 9 Entergy Corp. v. Riverkeeper, Inc.,

556 U.S. 208 .............................................................................................................................. 22


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Gas Co. v. FERC, 758 F.2d 669 (D.C. Cir. 1985) .................................................................................................... 9

Guthrie v. Niak,,

2013 U.S. Dist. LEXIS 139984 (S.D. Tex. Sep. 27, 2013) ....................................................... 11 Guy v. Tanner,

2014 U.S. Dist. LEXIS 85730 (E.D. La. June 19, 2014) .......................................................... 11 *Hamandi v. Chertoff,

550 F. Supp. 2d 46 (D.D.C. 2008) ...................................................................................... 21, 24 *Lujan v. National Wildlife Fed’n,

497 U.S. 871 (1990) .................................................................................................................. 21 New Motor Vehicle Bd. v. Orrin W. Fox Co.,

434 U.S. 1345 (1977) ................................................................................................................ 30 *Nio v. United States Department of Homeland Security,

270 F. Supp. 3d 48 (D.D.C. 2017) ................................................................................ 16, 20, 24 *Nolan v. Holmes,

334 F.3d 198 (2d Cir. 2003) ...................................................................................................... 14 *Norton v. S. Utah Wilderness All.,

542 U.S. 55 (2004) .................................................................................................................... 20 Paleteria La Michoacana, Inc. v. Productos Lacteos Tocumbo S.A. de C.V.,

901 F. Supp. 2d 54 (D.D.C. 2012) ............................................................................................ 10 Progress Dev. Corp. v. Mitchell,

286 F.2d 222 (7th Cir. 1961) ..................................................................................................... 10 Sherley v. Sebelius,

644 F.3d 388 (D.C. Cir. 2011) ................................................................................................ 8, 9 Sierra On-Line, Inc. v. Phoenix Software, Inc.,

739 F.2d 1415 (9th Cir. 1984) ................................................................................................... 11 Singh v. Carter,

185 F. Supp. 3d 11 (D.D.C. 2016) .............................................................................................. 9


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Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 239 F. Supp. 3d 77 (D.D.C. 2017) .............................................................................................. 9

Tex. Children’s Hosp. v. Burwell,

76 F. Supp. 3d 224 (D.D.C. 2014) .............................................................................................. 9 Thomas Jefferson Univ. v. Shalala,

512 U.S. 504 (1994) .................................................................................................................. 23 Univ. of Texas v. Camenisch,

451 U.S. 390 (1981) ............................................................................................................ 10, 12 Wayte v. United States,

470 U.S. 598 (1985) .................................................................................................................. 30 Weinberger v. Romero-Barcelo,

456 U.S. 305 (1982) .................................................................................................................. 30 Wisc. Gas Co. v. FERC,

758 F.2d 669 (D.C. Cir. 1985) .................................................................................................... 9

FEDERAL STATUTES

5 U.S.C. § 704 ............................................................................................................................... 20 5 U.S.C. § 706(1) .............................................................................................................. 19, 24, 25 5 U.S.C. § 706(2) .......................................................................................................................... 19 5 U.S.C. § 706(2)(A)....................................................................................................................... 1 8 U.S.C. § 1421(b)(1) ..................................................................................................................... 5 8 U.S.C. § 1423-1427 ................................................................................................................... 14 8 U.S.C. § 1440 ............................................................................................................................. 14 8 U.S.C. § 1440(a) .................................................................................................................... 3, 15 8 U.S.C. § 1440(b) .................................................................................................................. 14, 22


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8 U.S.C. § 1446(a) ........................................................................................................................ 30 28 U.S.C. § 2401(a) ...................................................................................................................... 23

PUBLIC LAW

Pub. L. No. 105-119 ........................................................................................................ 1, 8, 21, 22

FEDERAL REGULATONS

8 C.F.R. § 103.2(b)(8)(iv) ............................................................................................................... 5

8 C.F.R. § 316.2 ............................................................................................................................ 14 8 C.F.R. § 335.1 ............................................................................................................................ 30 8 C.F.R. § 335.2(b) ........................................................................................................... 21, 22, 23 8 C.F.R. § 335.7. ............................................................................................................................. 5

FEDERAL REGISTER 63 Fed. Reg. 12979 ....................................................................................................................... 23 76 Fed. Reg. 53764 ....................................................................................................................... 23

MISCELLANEOUS USCIS Office Closings, available at http://www.uscis.gov/about-us/uscis-office-closings (last

visited April 2, 2018). ............................................................................................................... 6


INTRODUCTION

This Court should deny Plaintiffs’ latest Motion for a Preliminary Injunction because

there is no merit to it. U.S. Citizenship and Immigration Services (“USCIS”) is in full

compliance with its lawful July 7, 2017 guidance (“July 7 Guidance”). Likewise, both USCIS

and the United States Department of Defense (“DoD”) are permitted to run FBI background

checks independently of one another, and their respective decisions to do so are not “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.

§ 706(2)(A). USCIS is in fact mandated by statute not to “complete adjudication of an

application for naturalization unless [it] has received confirmation from the Federal Bureau of

Investigation that a full criminal background check has been completed.” 1998 Department of

Justice Appropriations Act, Pub. L. No. 105-119, 111 Stat. at 2448 (emphasis added). This

Court has already denied preliminary relief on Plaintiffs’ claim that it was unlawful for USCIS to

add the DoD enhanced background checks (“DoD background check”) to its suite of background

checks required for military naturalization applications filed by Military Accessions Vital to the

National Interest (“MAVNI”) recruits; therefore, Plaintiffs’ claim that the addition of the DoD

enhanced background checks renders the other background checks conducted by USCIS

unlawful is essentially a motion for this Court to reconsider its reasoned denial of the Plaintiffs’

first Motion for a Preliminary Injunction. Moreover, Plaintiffs have no meaningful argument as

to why this Court should not simply decide the dispositive legal issues on motions for summary

judgment now, which this Court instructed the parties to file in accordance with its scheduling

order of January 23, 2018. (ECF No. 98.)

Plaintiffs’ attempt to obtain “preliminary” permanent relief while simultaneously

delaying the Court’s orderly resolution of the dispositive legal issues (on which this Court has

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stated that they are unlikely to succeed on the merits) is desperate artifice. This gamesmanship is

evident in the timing of this latest Motion for a Preliminary Injunction coupled with their Motion

for Leave to File a Third Amended Complaint. Plaintiffs’ proposed Third Amended Complaint

is interwoven with demonstrably false claims, and their reply brief in support of their Motion is

replete with acrimonious (and false) allegations that Defendants are engaging in “misconduct”

and that Justice Department attorneys and Defendants’ counsel have failed in their duty of

candor to this Court. Plaintiffs’ accusations are false and unsupported by the record. ECF No.

120 at 2, 3. This Court should deny both of Plaintiffs’ motions and proceed to summary

judgment.

FACTS

I. USCIS Continues To Apply Its Lawful July 7 Guidance.

On September 6, 2017, this Court denied Plaintiffs’ first motion for preliminary

injunctive relief, holding that, inter alia, that “it is difficult to conclude that the DHS Security

Screening Requirement violates the relevant statutes and regulations given the broad mandate

Congress bestowed on DHS/USCIS to oversee and evaluate naturalization applications.” See

ECF No. 44, at 18-19. Additionally this Court held that it cannot “characterize defendants’

change in policy as arbitrary and capricious when the policies respond to present national

security concerns.” Id. at 22. USCIS continues to follow its July 7 Guidance that directs its

Field Office Directorate (“FOD”) personnel not to proceed to interview, approve, or administer

the Oath of Allegiance to MAVNI recruits applying for military naturalization until all DoD

background and security checks have been completed. See ECF No. 19-6, ¶ 26; see also March

22, 2018, Declaration of Daniel Renaud, attached as Exhibit 1, ¶ 4. DoD informs USCIS when

the DoD background checks have been completed, meaning that DoD has reached a final

Military Service Suitability Determination (“MSSD”) on a service member. Thus, the final

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MSSD is the culmination of DoD’s enhanced background checks, which in turn leads USCIS to

proceed with the continued processing of a MAVNI recruit’s naturalization application,

including interview, adjudication, and administration of the Oath of Allegiance if the applicant is

eligible. Id. ¶ 2; See Jan. 23, 2018, Hr’g Tr. 47: 1-18 (The COURT: “Do you need to have a

suitability determination to have USCIS naturalize you? . . . MR. KISOR: Yes, Your Honor. So,

the CAF makes a military suitability determination recommendation to the Army, as I understand

that. And then the Army makes its final determination and then the process goes to USCIS.”). If

the MSSD is favorable, USCIS considers that sufficient evidence that no significant derogatory

information was located during the DoD background checks. Ex. 1, ¶ 5. If the MSSD is

adverse, USCIS requests further information from DoD regarding whether the recruit has been

discharged from the military and if so, how the discharge was characterized, because an

individual who has separated from service is eligible to naturalize under 8 U.S.C. § 1440(a) only

if he or she “was separated under honorable conditions.” Id. As needed to make a final

determination on the applicant’s eligibility for naturalization, USCIS also obtains further details

on the derogatory information that led to the adverse MSSD. Id. Thus, processing of

naturalization applications filed by MAVNI recruits after DoD Defendants complete MSSD

adjudications for these recruits is not “separate and distinct from DHS Defendants’ July 7, 2017

Policy”, as Plaintiffs claim. See ECF No. 119, at 25.

Contrary to Plaintiffs’ assertions, USCIS endeavors to adjudicate Form N-400,

Application for Naturalization (“Form N-400”) promptly after DoD background checks are

complete. However, the adjudication process is complex, and the completion of the DoD

background checks does not necessarily mean that the Form N-400 can be immediately

adjudicated, or that the individual can be immediately interviewed. Neither the July 7 Guidance,

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nor the Immigration and Nationality Act (“INA”), require such immediate action. Specifically,

after DoD notifies USCIS of the completion of a MAVNI recruit’s DoD background checks,

USCIS’s National Benefits Center (“NBC”) reviews the information provided by DoD. Ex. 1,

¶ 6. An NBC employee then manually identifies, inter alia, whether there is a pending

naturalization application filed by that individual, where the naturalization application is located,

and whether pre-processing of that application is complete. Id. ¶ 6. This “pre-processing” –

which the NBC generally initiates within several days of receiving a naturalization application,

and proceeds with while the results of DoD background checks are pending – includes other

USCIS background checks. Id. ¶¶ 6-7, 18. As the DoD and USCIS systems use different

primary identifiers (Social Security Numbers and A-Numbers, respectively), the NBC may also

need to seek clarification from DoD if there are questions or confusion as to an individual’s

identity. Id. In some cases, generally involving recently-filed applications, certain pre-

processing steps remain incomplete at the time when USCIS is notified by DoD that the

enhanced background check is complete. Id. ¶ 7. If pre-processing is complete, the NBC mails

the individual’s Alien file (“A file”) to the relevant field office and notifies the field office that

the case file is being shipped for the applicant to be interviewed or final processing completed (if

an interview has already taken place) at that field office. Id. If the file is not located at the NBC,

the NBC notifies the office where the A file is located by email of the DoD notification. Id.

After the NBC completes these steps, the field office with jurisdiction over the

naturalization application must review the A file, which includes the naturalization application,

in full and order any other related files that may be relevant to the applicant’s eligibility. Id. ¶ 8.

The files contain documents and facts affecting the applicant’s eligibility for naturalization, and

those documents and facts may require additional research or investigation, correspondence with

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other government agencies that may have relevant information, or other actions. Id. If the

applicant has failed to provide all necessary evidence or the adjudicator determines additional

information is needed to make a decision on the case, the field office may need to request that

evidence from the applicant. If a Request for Evidence (“RFE”) is issued, the applicant may be

provided up to 87 days (or 30 days if the interview has already taken place) to respond. 8 C.F.R.

§§ 103.2(b)(8)(iv), 335.7. Id.

When the case is ready, if no interview has yet taken place or a second interview is

needed for any reason, the field office contacts the applicant and/or his or her personal attorney,

as specified on Form G-28, Notice of Entry of Appearance as Attorney or Accredited

Representative, to schedule the applicant for an interview. Id. ¶ 9. Depending on the facts and

circumstances of an individual case, it may or may not be possible to adjudicate the application

on the same date as the interview. Id. Thus, the case may be continued, rather than adjudicated,

for a variety of reasons, inter alia, the need for additional evidence or a failure by the applicant

to pass the required English and civics tests. Id. Once all issues are resolved, the application is

adjudicated. Id. If it is approved, the applicant still must take the Oath of Allegiance in order to

become a naturalized U.S. citizen. Id.1

1 As explained in the Renaud Declaration (Ex. 1), in many cases, USCIS has the authority to administer the Oath of Allegiance and can do so on the same day that the application is adjudicated. Id. ¶ 9. However, in some cases, that is not possible for operational reasons, and in other cases, it is not possible because a U.S. District Court has exclusive authority to administer the Oath of Allegiance, and the applicant must wait until there is an available oath ceremony slot. See 8 U.S.C. § 1421(b)(1). Id. Approximately 40 USCIS field offices, including the Cleveland Field Office, Detroit Field Office, Kansas City Field Office, Las Vegas Field Office, Los Angeles Field Office, and Salt Lake City Field Office, are located in districts where the U.S. District Court has exclusive authority to administer the Oath of Allegiance, although in some cases, these offices are able to obtain waivers from the Court to conduct an administrative ceremony. Id.

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II. Naturalization at Basic Training Initiative.

The Naturalization at Basic Training Initiative was established in August 2009 to give

non-citizen military enlistees the opportunity to naturalize during Basic Training. See ECF No.

19-6, ¶ 13; Ex. 1, ¶ 12. The Initiative is not required by law, but was begun because USCIS and

Army (and later other military branches) determined, at that time, that the Initiative supported the

needs of both agencies, and that there were sufficient resources available to support it. The

Initiative ended on January 26, 2018, when USCIS ceased to have a full-time presence at any

Basic Training location and closed its offices at Fort Sill, Fort Benning, and Fort Jackson. Ex. 1,

¶ 12; See USCIS Office Closings, available at http://www.USCIS.gov/about-us/uscis-office-

closings (last visited April 2, 2018). USCIS decided to end the Naturalization at Basic Training

Initiative after DoD issued its October 13, 2017 Memorandum, entitled “Certification of

Honorable Service for Members of the Selected Reserve of the Ready Reserve and Members of

the Active Components of the Military or Naval Forces for Purposes of Naturalization.” Id., ¶

13. This October 13, 2017 Memorandum stated that service members who enlist on or after

October 13, 2017, with limited exceptions2, will not receive a certified Form N-426, Request for

Certification of Military or Naval Service (“Form N-426”), until they have completed Basic

Training and served on active duty for 180 consecutive days, inclusive of Basic Training, or in

the Selected Reserve of the Ready Reserve for one year, inclusive of Basic Training.3 Id.; see

ECF No. 58-1. Thus, service members who enlist on or after October 13, 2017 are unlikely to

have the requisite amount of service to receive a certified Form N-426 by the time they graduate

from Basic Training. Ex. 1, ¶ 13. Therefore, because it would be impractical to continue the

2 These limited exceptions relate to service members who serve in an active duty status in a hazardous duty area. 3 This Section of the October 13th Memorandum was not enjoined by this Court in either this Case or in Kirwa.

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Naturalization at Basic Training Initiative, as USCIS projected that the population of noncitizen

recruits in Basic Training would soon be composed of continually larger percentages of lawful

permanent residents (“LPRs”) who enlisted on or after October 13, 2017, and fall under DoD’s

new Form N-426 certification policies, USCIS determined that the Naturalization at Basic

Training Initiative was not the most beneficial way to support U.S. service members applying for

naturalization. Ex. 1, ¶¶ 13-14. As such, the decision to end the Naturalization at Basic Training

Initiative was based on managing government resources and was not affected by DoD’s

background check process or USCIS’s decision to require DoD enhanced background checks for

MAVNI recruits applying for military naturalization. Ex. 1, ¶ 14.

USCIS does not have a role in determining when a recruit is shipped to Basic Training or

the timing of other active duty training. USCIS continues to support military service members

who apply for naturalization – whose adjudication now generally takes place at field offices

located within the jurisdiction of the service member’s permanent station – and USCIS

endeavors to naturalize eligible MAVNI recruits before they attend Basic Training. Id., ¶¶ 11,

15. However, there are many cases in which there is little time between the date when DoD

notifies USCIS that a MAVNI recruit’s DoD enhanced background checks have been completed

and the date on which that individual is scheduled to attend Basic Training. Id., ¶ 11. USCIS

does not have any policy requiring that a military naturalization applicant must attend Basic

Training before the applicant naturalizes. Id.

III. FBI Background Checks

As explained in the attached Renaud Declaration, USCIS is explicitly required by statute

to ensure that all naturalization applicants undergo an FBI background check, initiated by

USCIS, regardless of whether the applicant is a MAVNI recruit, and to “receive confirmation

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from the Federal Bureau of Investigation that a full criminal background check has been

completed.” 1998 Department of Justice Appropriations Act, Pub. L. No. 105-119, 111 Stat. at

2448; Ex. 1, ¶ 17-18 (“USCIS has long required that MAVNI recruits comply with all standard

USCIS background check requirements, including USCIS’s FBI background check

requirements.”). The statute is specific that USCIS must obtain confirmation from the FBI, that

the full FBI criminal background check is complete. USCIS generally requests an FBI

background check to be completed soon after a naturalization application is filed, and this

request to the FBI is a routine part of the “pre-processing” of all naturalization applications,

which is handled by USCIS’s NBC. Id., ¶ 7. The NBC begins, and if possible completes,

pre-processing, including the FBI background check, while DoD’s enhanced background checks

are outstanding. Id. USCIS cannot direct DoD not to conduct a similar FBI background check

as part of its enhanced background screening, nor does the statutory mandate to USCIS to

“receive confirmation from the Federal Bureau of Investigation” permit USCIS to receive a

second-hand report from DoD that a full FBI criminal background check was completed in lieu

of receiving such a report from the FBI itself.4

STANDARD OF REVIEW

A preliminary injunction is “an extraordinary remedy that may only be awarded upon a

clear showing that the plaintiff is entitled to such relief.” Sherley v. Sebelius, 644 F.3d 388, 392

(D.C. Cir. 2011). A preliminary injunction is meant “merely to preserve the relative positions of

the parties” until the case can be resolved, Chaplaincy of Full Gospel Churches v. England, 454

F.3d 290, 297 (D.C. Cir. 2006), and generally “should not work to give a party essentially the

4 Additionally, it is entirely possible that new information could arise between the two FBI background checks.

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full relief he seeks on the merits.” Singh v. Carter, 185 F. Supp. 3d 11, 16-17 (D.D.C. 2016)

(citing Dorfmann v. Boozer, 414 F.2d 1168, 1173 (D.C. Cir. 1969)).

A plaintiff seeking a preliminary injunction must establish: (1) that he is likely to succeed

on the merits; (2) that he is likely to suffer irreparable harm in the absence of preliminary relief;

(3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest.

Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014). Importantly, “the standard for

obtaining an injunction is significantly heightened when a plaintiff requests affirmative

injunctive relief.” Tex. Children’s Hosp. v. Burwell, 76 F. Supp. 3d 224, 247 (D.D.C. 2014).

The D.C. Circuit has suggested that the Supreme Court has rejected a “sliding-scale”

approach to the preliminary-injunction factors (which allows a shortcoming on one injunction

factor to be made up by a showing on another), in favor of a “more demanding burden” requiring

plaintiffs to independently demonstrate both a likelihood of success on the merits and irreparable

harm. See Sherley, 644 F.3d at 392-93; Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288,

1292 (D.C. Cir. 2009). The failure to show a likelihood of success on the merits alone is

sufficient to defeat a plaintiff’s preliminary injunction motion. See Standing Rock Sioux Tribe v.

U.S. Army Corps of Engineers, 239 F. Supp. 3d 77, 83 (D.D.C. 2017) (Boasberg, J.) (citing Ark.

Dairy Co-Op Ass’n, Inc. v. USDA, 573 F.3d 815, 832 (D.C. Cir. 2009); Apotex, Inc. v. FDA, 449

F.3d 1249, 1253 (D.C. Cir. 2006)).

Just as critical is the plaintiff’s demonstration of his irreparable injury, which “must be

both certain and great; it must be actual and not theoretical.” Wisc. Gas Co. v. FERC, 758 F.2d

669, 674 (D.C. Cir. 1985) (per curiam). “The key word in this consideration is irreparable.”

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (emphasis

added). The “possibility that corrective relief will be available at a later date, in the ordinary

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course of litigation weighs heavily against a claim of irreparable harm.” Id. at 297-98. Indeed, if

a party fails to make a sufficient showing of irreparable injury, the court may deny the motion for

injunctive relief without considering the other factors. CityFed Fin. Corp. v. Office of Thrift

Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995).

ARGUMENT

I. A Preliminary Injunction Is Not A Tool For Preliminary Adjudication On The Merits. A preliminary injunction is an improper procedural device for the relief sought in

Plaintiffs’ Motion because the purpose of a preliminary injunction is merely to “preserve the

relative positions of the parties until a trial on the merits can be held.” Univ. of Texas v.

Camenisch, 451 U.S. 390, 395 (1981); City of Moundridge v. Exxon Mobil Corp., 429 F.Supp.2d

117, 126 (D.D.C. 2006) (“a motion for a preliminary injunction generally seeks to maintain the

status quo”). Given this limited purpose and the urgency that often accompanies requests for a

preliminary injunction, such requests are often decided based on procedures that are less formal

and evidence that is less complete than in a full merits trial. Camenisch, 451 U.S. at 395; see

also Brown v. Chote, 411 U.S. 452, 456 (1973) (finding that exigent circumstances and a limited

record supported a preliminary injunction but “a decision on the merits would not have been

appropriate”); Progress Dev. Corp. v. Mitchell, 286 F.2d 222, 233 (7th Cir. 1961) (stating that

parties are not required to prove their case in full at a preliminary injunction hearing); Paleteria

La Michoacana, Inc. v. Productos Lacteos Tocumbo S.A. de C.V., 901 F. Supp. 2d 54, 57

(D.D.C. 2012) (“an injunction requires the court to act before a decision on the merits has been

reached”).

Consequently, preliminary injunctions are not intended to serve as “a preliminary

adjudication on the merits but rather [as] a device for preserving the status quo and preventing

10


the irreparable loss of rights before judgment.” Sierra On-Line, Inc. v. Phoenix Software, Inc.,

739 F.2d 1415, 1422 (9th Cir. 1984); see, e.g., Guy v. Tanner, 2014 U.S. Dist. LEXIS 85730, *

7-8 (E.D. La. June 19, 2014) (“Guy’s motion is no more than a veiled attempt to expedite the

resolution of his habeas petition. This is not a proper basis for issuing an injunction”); Guthrie v.

Niak, 2013 U.S. Dist. LEXIS 139984, *17-18 (S.D. Tex. Sep. 27, 2013) (“[I]t appears Plaintiff is

merely trying to expedite the relief sought in his Complaint”).

Here, Plaintiffs are attempting to obtain the same relief sought by the Complaint on an

expedited basis and without a full APA record review on the merits of their claims. Compare

ECF No. 61, ¶¶ 150-151, with ECF No. 119 at 6, 7. Moreover, the relief Plaintiffs now seek is

the same relief sought in their first request for a preliminary injunction, which this Court has

already denied. See ECF Nos. 43, 44; see also Jan. 23, 2018 Hr’g Tr. 23:18-25; 24:1-10 (MS.

WOLLENBERG: “It has been a struggle. It has not be [sic] expeditious and it has not been

without adding requirements to the naturalization process that are not found in the statute.” THE

COURT: That’s the legal issue . . . putting aside the military review, which is part of the legal

issue… I know that the military clearance is your biggest problem.”); id. at 25:2-14 (MS.

WOLLENBERG: “But what he said is what is holding everything is this military suitability

determination that CAF part of it, the adjudications at the CAF and at the Army but you don’t

need those…which has nothing to do with good moral character, attachment to the Constitution

or whether USCIS can use the background information to assess those.”).

Plaintiffs nonetheless claim that a preliminary injunction is now warranted because

USCIS’s Certified Administrative Record (“USCIS CAR”) supports their assertion that the July

7 Guidance is unlawful. See ECF No. 119 at 12 (“The Agency Record clearly establishes that

Defendants’ July 7 Policy is arbitrary and capricious.”); id. at 12-21. However, if Plaintiffs’

11


position is that the USCIS CAR does not support USCIS’s decision, the ordinary and proper

procedure at this point in the litigation would be for Plaintiffs to move for (or oppose

Defendants’ motion for) summary judgment rather than burden this Court with yet another

request for a preliminary injunction. Moreover, by filing this latest request for a preliminary

injunction, Plaintiffs have inexplicably circumvented the dispute resolution process which this

Court ordered and which was, at the time they filed it, actively being considered by Magistrate

Judge Meriweather. See ECF No. 106, February 16, 2018 Hr’g. Tr., at 24-28 (raising the same

issues now present in the TRO to the Magistrate Judge).5

At the preliminary injunction stage, the parties generally do not have the benefit of a full

opportunity to present their cases or a final judicial decision on the merits of the controversy.

Thus, any issue preserved by an injunction must be resolved on the merits. Camenisch, 451 U.S.

at 396. Therefore, to the extent that Plaintiffs want to argue that the July 7 Guidance is arbitrary

and capricious, this Court has already denied those arguments at the preliminary injunction stage,

see ECF Nos. 43, 44, and that issue is currently being briefed to the Court on a motion for

summary judgment.6 As such, the Court should deny Plaintiff’s latest Motion.

5 Pages of this hearing are attached for the Court’s convenience as, Ex. 3. 6 Rather than re-stating or rehashing arguments that are already before the Court in Defendants’ Motion for Summary Judgment (ECF No. 116), Defendants hereby incorporate those arguments by reference to support that the Certified Administrative Record clearly demonstrates that the July 7 Guidance is not arbitrary, capricious, or contrary to law. Additionally, to the extent that Plaintiffs claim that the CAR is incomplete, the remedy is not to seek a preliminary injunction on relief that has already been denied.

12


II. Plaintiffs Cannot Show A Likelihood Of Success On The Merits

A. USCIS is complying with its July 7 Guidance.

On September 6, 2017, this Court denied Plaintiffs’ motion for preliminary injunctive

relief, holding that, inter alia, “it is difficult to conclude that the DHS Security Screening

Requirement violates the relevant statutes and regulations given the broad mandate Congress

bestowed on DHS/USCIS to oversee and evaluate naturalization applications.” See ECF No. 44,

at 18-19. Additionally the Court held that it cannot “characterize defendants’ change in policy as

arbitrary and capricious when the policies respond to present national security concerns.” Id. at

22. Plaintiffs now assert that USCIS is not complying with its July 7 Guidance because it is

“refusing to request and review” the information gathered in connection with the DoD

background check. See ECF No. 119, at 1. Plaintiffs also assert that USCIS has adopted a

“separate and distinct” policy from the July 7 Guidance by “[m]andating, as a condition of

naturalization adjudication, that soldiers who already have completed their ‘enhanced DoD

security checks’ further successfully complete irrelevant NSD and MSSD adjudications.” Id., at

1, 10.

However, as this Court has previously noted, pursuant to the July 7 Guidance, MAVNI

recruits must be issued a final MSSD, as the culmination of the DoD background check process,

before USCIS can complete adjudication of the MAVNI recruits’ naturalization applications.

Jan. 23, 2018 Hr’g Tr. 37:5-10; (THE COURT: “And I always understood that that to be their

military suitability.”); see also id. 47:1-18 (“Okay. We can stop here. I must say that the nuance

differences, I have not understood their position to be that at all. But why don’t we get it on the

record one way or another. Do you need to have a suitable military determination to have USCIS

naturalize you?” MR. KISOR: “…Yes, Your Honor. So, the CAF makes a military suitability

13


determination recommendation to the Army, as I understand that. And then the Army makes its

final determination and then the process goes over to USCIS.”); id. at 46: 22-25. Moreover, as

the declaration of Daniel Renaud clearly states, “a final MSSD is the culmination of DoD’s

enhanced background checks and indicates that these checks are complete.” Ex. 1, ¶ 4. Thus,

any argument that USCIS is somehow not complying with the July 7 Guidance because it is

requiring MAVNI recruits to obtain MSSDs before USCIS adjudicates their naturalization

applications – or that requiring MSSDs is somehow a new USCIS policy “separate and distinct”

from the July 7 Guidance – is simply wrong.

As Defendants have already noted, in 8 U.S.C. § 1440, Congress permitted USCIS to

naturalize a member of the military with relaxed requirements for age, residency, and physical

presence. However, Congress did not relax the background check or investigation process for

these naturalization applicants who are applying based on their service. 8 U.S.C. § 1440(b)

provides that “[a] person filing an application under . . . this section shall comply in all other

respects with the requirements of this subchapter.” Thus, the statute provides a number of

criteria that an applicant must meet to demonstrate eligibility to naturalize, see 8 U.S.C. § 1423-

1427; 8 C.F.R. § 316.2, including good moral character. See Nolan v. Holmes, 334 F.3d 189, 198

(2d Cir. 2003) (holding that § 1440 is ambiguous and [the Government’s] interpretation that

§ 1440 includes a good-moral-character requirement is reasonable).

Congress has expressly delegated to the Secretary of Homeland Security the broad

authority to administer all provisions of the INA with the force of law. This includes requiring

MAVNI recruits who are applying for naturalization under Section 1440 to complete DoD

background checks, because USCIS has determined that these background checks are pertinent

to its investigation of the applicant’s eligibility for naturalization. This is especially true given

14


the unique situation of naturalization applicants under Section 1440. Thus, the idea that

individuals can naturalize simply for their willingness to serve in the military in a time of war –

regardless of whether they meet the eligibility requirements for naturalization – is not consistent

with the mandate issued by Congress in this regard.

A motion for preliminary injunction is not the appropriate avenue to challenge

reasonable policies implemented through USCIS’s broad authority to administer immigration

laws under the INA. See ECF No. 44, at 18-19. In their preliminary injunction motion, Plaintiffs

claim that USCIS is not complying with its July 7 Guidance because it is “refusing to request and

review, or unreasonably delaying the request for and review of, the information gathered in

connection with the ‘enhanced DoD security checks.’” ECF No. 119, at 1 (emphasis removed).

However, USCIS, in its discretion in evaluating an applicant’s good moral character, has

reasonably determined that if the MSSD is favorable, that is sufficient evidence that no

significant derogatory information was located during the DoD enhanced background checks.

See Ex. 1, ¶ 5. If the MSSD is adverse, USCIS requests further information from DoD regarding

whether the recruit has been discharged from the military and if so, how the discharge was

characterized, because an individual who has separated from service is eligible to naturalize

under 8 U.S.C. § 1440(a) only if he or she “was separated under honorable conditions.” Id. As

needed to make a final determination on the applicant’s eligibility for naturalization, USCIS also

obtains further details on the derogatory information that led to the adverse MSSD. Id. It

appears, therefore, that Plaintiffs are not requesting that USCIS comply with its July 7 Guidance,

but attempting to use this Motion for Preliminary Injunction to advocate for a change to guidance

with which they disagree. However, this Court has held that it cannot “characterize defendants’

change in policy as arbitrary and capricious when the policies respond to present national

15


security concerns.” ECF No. 44, at 22; See Nio v. United States Department of Homeland

Security, 270 F. Supp. 3d 48, 63 65 (D.D.C. 2017) (rejecting Plaintiffs’ claim that “the addition

of the enhanced security screening is contrary to law,” and likewise rejecting the claim that

USCIS “acted in an arbitrary and capricious manner when they abruptly added the DHS Security

Screening Requirement”) (emphasis added). Thus, Plaintiffs’ claims are both without merit and

inappropriate in a Motion for Preliminary Injunction.

Plaintiffs additionally claim that Defendants are “imposing a wide array of unlawful

additional requirements for adjudication of naturalization, such as: requiring the completion of

Basic Combat Training . . . or other active duty service…[and] submission of a Form DD-214

(Certificate of Released or Discharge from Active Duty).” See ECF No. 119, at 1-2, 7.

Plaintiffs’ latest preliminary injunction motion further implies that USCIS ended the Basic

Training Initiative as a dilatory tactic to “impede” the adjudication of naturalization applications

filed by Plaintiffs and the class. Id. at 1-2. However, Plaintiffs’ assertions are incorrect. As a

threshold matter, USCIS does not have any policy requiring that a military naturalization

applicant must attend Basic Training before the applicant naturalizes or that a military

naturalization applicant who has not separated from the military must submit a DD-214. Ex. 1,

¶¶ 3, 11. To the contrary, Defendants have provided evidence to the Court that former class

members have been naturalized prior to attending Basic Training, and Plaintiffs do not allege

that these class members were required to submit Form DD-214. See e.g. ECF Nos. 109, 95-1.

Thus, to the extent that any particular class member was informed that completion of Basic

Training and/or submission of Form DD-214 was a requirement for naturalization that is a case-

specific issue; it does not relate to a policy that is being applied on class-wide basis, and thus

class-wide injunctive relief is not appropriate. Rather, these issues should be resolved on a case-

16


specific basis (such as through the dispute resolution mechanism that Defendants proposed to

Magistrate Judge Meriweather (ECF No. 105)).

As the Renaud Declaration states, the decision to end the Naturalization at Basic Training

Initiative was based on managing government resources and was not affected by DoD’s

background check process or USCIS’s decision to require DoD enhanced background checks for

MAVNI recruits applying for military naturalization. Ex. 1, ¶ 14. USCIS justifiably focused on

the changing LPR population at Basic Training sites – which will be composed of continually

larger percentages of individuals who enlisted on or after October 13, 2017, and are therefore

subject to DoD’s time-in-service requirements for certifying Form N-426 – when it reached its

decision to end the Naturalization at Basic Training Initiative. Id. The majority of service

members who previously naturalized through the Naturalization at Basic Training Initiative were

not MAVNI recruits, but rather LPRs. Id. Plaintiffs’ suggestion that USCIS ended the initiative

in order to delay the naturalization of MAVNI recruits is a result of their narrow focus on the

class members in this litigation.

Furthermore, USCIS cannot control when a recruit is shipped to Basic Training or the

timing of other active duty training, and it is simply not always possible for USCIS to interview

the applicant, adjudicate his or her application, and if the application is approved, administer the

Oath of Allegiance before that applicant attends Basic Training. Id., ¶ 11. In cases when the

adjudication is not completed before the applicant goes to Basic Training, USCIS attempts to

remain in contact with the applicant to the extent possible and complete the adjudication of the

application, including administration of the Oath of Allegiance if the application is approved, as

soon as possible following the applicant’s return from Basic Training.

17


Plaintiffs apparently believe that if a recruit is scheduled to be shipped to Basic Training

within days of completing the MSSD, USCIS is obligated to process Form N-400 before the

solider ships out to Basic Training. However, Plaintiffs point to no law or policy that requires

USCIS to schedule an interview for an individual applying for naturalization under section 1440

before Basic Training, and no such law or policy exists. While USCIS tries to process the Form

N-400 before the recruit ships out to Basic Training, USCIS is not required to finish processing

these applications in such a limited time frame. As described supra, the adjudication process for

Form N-400 is complex, and it not always possible to complete all necessary steps of the

adjudication process before an individual ships to Basic Training. In some instances, USCIS

may require additional processing time, while in other circumstances, the applicant’s failure to

provide all needed evidence, or the applicant’s particular scheduling needs may prevent

adjudication before the individual leaves for Basic Training.

Finally, a Form DD-214 is not required for military naturalization applications filed by

MAVNI recruits unless the applicant has separated from the military. See Ex. 1, ¶ 3.

Additionally, a second Form N-426 is not required unless the first Form N-426 was signed by an

unauthorized individual or was incomplete; and the DoD memorandum of October 13, 2017, did

not alter the requirements for military naturalization, but rather affected DoD’s internal

requirements for certifying Form N-426. Id.; see also ECF No. 93-3, ¶ 11. In cases where FOD

HQ has become aware of a misunderstanding or misapplication of military naturalization policies

in the Field, FOD HQ has acted quickly – usually within one to two days of being made aware of

it – to contact the relevant office and correct that misunderstanding or misapplication. See Ex. 1,

¶ 3; Jan. 23, 2018 Hr’g Tr. 29:16-25 – 30:1-19 ( The COURT: “So you either have to come to

some agreement on a system or we figure out some other person to deal with this because it

18


cannot be like this… That is what I tried to tell everybody in December . . . So what we really

need to do is figure out a system to respond so that if they have people giving misinformation, it

being corrected.”). Thus, because USCIS is complying with its lawful July 7 Guidance, the

Court should deny Plaintiffs’ preliminary injunction motion.

B. USCIS’s FBI Background Check Procedure is Required by Law.

Plaintiffs have not shown that they are likely to succeed in their APA-based challenge to

USCIS’s continued use of its own process for ensuring that all naturalization applicants undergo

an FBI background check. See ECF No. 119, at 44-48. In order to bolster their claims, Plaintiffs

attempt to characterize USCIS’s continued use of its own FBI background check procedure as

“redundant,” and a “new policy.” See ECF No. 119, at 46. In fact, Plaintiffs are urging USCIS

to depart from their longstanding procedures for requesting FBI background checks, and adopt a

new policy that specifically exempts them, even though such an exemption would be in violation

of law. Far from being unlawful, or arbitrary and capricious, USCIS is required by statute to

request and receive the results of FBI background checks from the FBI prior to adjudicating a

naturalization application. Plaintiff’s claims under 5 U.S.C. § 706(2) are, therefore, unlikely to

succeed on the merits. Nor have Plaintiffs shown that the USCIS’s continued use of FBI

background checks leads to their applications being “unlawfully withheld or unreasonably

delayed.” See 5 U.S.C. § 706(1).

i. FBI background check procedure is not a final agency action.

As an initial matter, Plaintiffs’ claims under 5 U.S.C. § 706(2) necessarily fail because

USCIS’s use of its routine FBI background check procedure is not a final agency action.7 Under

7 It should also be noted that, insofar as Plaintiffs are now arguing that USCIS’s FBI background check requirement is contrary to law or arbitrary and capricious when combined with the July 7

19


the APA, only “[a]gency action made reviewable by statute and final agency action for which

there is no adequate remedy in a court” is subject to judicial review. 5 U.S.C. § 704.

In Bennett v. Spear, 520 U.S. 154 (1997), the Supreme Court held that two conditions

must be satisfied for a plaintiff to make the threshold showing of final agency action: first, the

action must mark the “consummation” of the agency’s decision making process—it must not be

of a merely tentative or interlocutory nature. And second, the action must be one by which

“rights or obligations have been determined,” or from which “legal consequences will flow.” Id.

at 177-78; see also Center for Auto Safety v. National Highway Traffic Safety Administration,

452 F.3d 798, 807 (D.C. Cir. 2006). The challenged agency action must satisfy both conditions

to be considered “final” under the APA. Center for Auto Safety, 452 F.3d at 807 (emphasis

added).

USCIS’s requirement that Plaintiffs complete the same FBI background check required

of all naturalization applicants is only an intermediate phase of the overall adjudication process –

it is plainly not the “consummation” of the agency’s decision making process. Bennett, 520 U.S.

at 177-78. Nor is it an action from which “legal consequences will flow” because INA and

USCIS regulations make clear that USCIS, not FBI, is the only agency responsible for the

adjudication of naturalization applications. Id.

Additionally, the “agency action” requirement precludes “broad programmatic attacks”

on an agency’s administration of a program. Norton v. S. Utah Wilderness All., 542 U.S. 55, 64

Guidance, that was essentially the basis of their prior motion for preliminary injunction in this case, which this Court already denied. See Nio v. United States Department of Homeland Security, 270 F. Supp. 3d 48, 63-65 (D.D.C. 2017) (rejecting plaintiffs claim that “the addition of the enhanced security screening is contrary to law,” and likewise rejecting the claim that USCIS “acted in an arbitrary and capricious manner when they abruptly added the DHS Security Screening Requirement”) (emphasis added).

20


(2004). In Lujan v. National Wildlife Fed’n, 497 U.S. 871, 882 (1990), the Supreme Court

announced a prohibition on programmatic challenges – such as the one Plaintiffs are pursuing

against USCIS – and determined that the challenged “program” was “not an agency action”

within the meaning of § 702, much less a “final agency action” under § 704. Id. In reaching this

conclusion, the Court emphasized that § 702 only allows for review of “identifiable agency

action,” and that the APA requires challenge to agency action on a “case-by-case” basis, rather

than pursuing “wholesale improvement of [an agency] program by court decree.” Id. at 891-894.

In any event, Plaintiffs are not likely to succeed on the merits of an APA-based claim

against USCIS’s continued use of its longstanding FBI background check procedure. As this

Court has noted in a prior case, “USCIS must conduct a background investigation of the

applicant.” Hamandi v. Chertoff, 550 F. Supp. 2d 46, 50 (D.D.C. 2008) (emphasis added).

Under the 1998 Department of Justice Appropriations Act, Pub. L. No. 105-119, Title I, 111 Stat.

2440, 2448 (Nov. 26, 1997), “none of the funds appropriated or otherwise made available to the

Immigration and Naturalization Service [now USCIS] shall be used to complete adjudication of

an application for naturalization unless the Immigration and Naturalization Service [now USCIS]

has received confirmation from the Federal Bureau of Investigation that a full criminal

background check has been completed…”) (emphasis added); see Hamandi, 550 F. Supp. 2d at

52, n. 7 (quoting the same language from the 1998 Department of Justice Appropriations Act).

Consistent with this statutory requirement, 8 C.F.R. § 335.2(b) states that “USCIS will notify

applicants for naturalization to appear . . . [for an initial examination] only after the USCIS has

received a definitive response from the [FBI] that a full criminal background check of an

applicant has been completed.” (emphasis added).

21


Plaintiffs do not identity any law or regulation that USCIS violates by continuing to

employ its own FBI background check procedure in the processing of MAVNI applicants. ECF

No. 119, at 45-47. As discussed in Defendants’ prior filings, while 8 U.S.C. § 1440(b) allows for

relaxed requirements for age, residency, and physical presence, it does not in relax the

background check process for these individuals, or require that process to be expedited. Indeed,

section 1140(b) plainly states that “[a] person filing an application under . . . this section shall

comply in all other respects with the requirements of this subchapter.” 8 U.S.C. § 1440(b)

(emphasis added). Plaintiffs are thus unlikely to succeed on the merits of any claim that

USCIS’s continued use of its FBI background check procedure as part of “pre-processing” for all

naturalization applications is “contrary to law.”

Nor have Plaintiffs shown they are likely to be successful in arguing that USCIS’s

continued use of its FBI background check is “arbitrary or capricious.” First, as discussed above,

Congress explicitly instructed USCIS that it may only proceed to an initial examination of a

naturalization applicant where “[USCIS] has received confirmation from the [FBI] that a full

criminal background check has been completed.” 1998 Department of Justice Appropriations

Act, Pub. L. No. 105-119, 111 Stat. at 2448; 8 C.F.R. § 335.2(b). The statute is not ambiguous

as to whether USCIS may rely on a potentially similar FBI background check requested by

another agency. It specifically requires USCIS to “receive[] confirmation from the Federal

Bureau of Investigation.” Furthermore, even if the statute were ambiguous, USCIS’s

interpretation, which ensures that all naturalization applicants are subject to the same FBI

background check, is reasonable and does not conflict with the language of the statute. See

Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 218 (agency action is permissible if it

represents a “reasonable interpretation of the statute – not necessarily the only possible

22


interpretation, nor even the interpretation deemed most reasonable by the courts.”); Thomas

Jefferson Univ. v. Shalala, 512 U.S. 504, 513 (1994) (upholding application of a broad regulation

because it did not conflict with the regulations plain language).

Indeed, as explained in the Renaud Declaration, USCIS has no control over the types of

FBI background checks that DoD may require as part of its own screening process. Ex. 1, at

¶ 16, n. 3. Accordingly, even assuming the background checks performed as part of the DoD

process are identical to those requested by USCIS at present, USCIS has no ability to ensure that

would continue to be the case. It is entirely reasonable, and therefore not an abuse of discretion,

for USCIS to ensure that it complies with the statute, which requires it to obtain background

checks from the FBI, by continuing to employ a procedure that is performed consistently over

time for all naturalization applicants.8

8 Additionally, to the extent that there has been any final USCIS action with regard to the FBI background checks, the statute of limitations to challenge such action has long since passed. The APA requires changes to final agency actions to be brought within six years. 28 U.S.C. § 2401(a). USCIS’s regulation requiring FBI background checks, 8 C.F.R. § 335.2(b), was most recently updated in 2011. Id., Paragraph (b) added effective 3/29/98, 63 Fed. Reg. 12979) (Introductory text revised 11/28/2011, 76 Fed. Reg. 53764). USCIS has not made any regulatory change to its FBI background checks procedures for naturalization applicants since that time. The July 7 Guidance did not change USCIS’s FBI background checks procedures, nor have Plaintiffs alleged that it did. Rather, by Plaintiffs own admission, USCIS’s FBI background check is not new, but in their view, “redundant.” See e.g. ECF 126-1 at 49, 77, 93. Given that Plaintiffs are not challenging DOD’s use of FBI background checks, and Plaintiffs do not contest that USCIS has not made any changes to its regulations regarding FBI background checks in the last six years, Plaintiffs’ claims regarding FBI background checks are barred because the statute of limitations has passed.

23


ii. FBI background check procedures do not “unlawfully withhold or unreasonably delay” naturalization applications.

Plaintiffs also fail to show they are likely to succeed on a claim that USCIS’s continued

use of its FBI background check procedure results in their naturalization applications being

“unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1).

As this Court observed when denying Plaintiffs’ prior motion for preliminary injunction,

“no statute or regulation mandates a timetable for completing the investigation and

examination,” and “plaintiffs must demonstrate that USCIS is not completing its investigation,

examination, and adjudication of MAVNI naturalization applicants within a ‘reasonable amount

of time.’” Nio v. United States Department of Homeland Security, 270 F. Supp. 3d 48, 67

(D.D.C. 2017) (citing Hamandi, 550 F. Supp. 2d at 50). The Court further held that

“[d]etermining whether USCIS is performing its duty within a reasonable amount of time within

the meaning of 5 U.S.C. § 706(1) is a fact intensive inquiry.” Id. Plaintiffs’ present motion for

preliminary injunction, like their prior one, does not contain any facts to support their claim of

unreasonable delay as a result of USCIS’s continued use of its FBI background check procedure.

See ECF No. 119, at 24-25, 47-48.

While Plaintiffs’ latest motion cites several examples in which counsel was advised that

USCIS’s FBI background check is distinct from that of DoD, see ECF No. 119, at 24-25 (citing

Ex. 17-19), none of these examples demonstrates that this practice results in the unreasonable

delay of Plaintiffs’ naturalization applications. As stated in the attached Renaud Declaration, the

NBC “generally initiates FBI background checks within several days of receiving a

naturalization application” and “does not wait for the completion of DoD’s enhanced background

checks” before initiating these checks. Ex.1, ¶ 18. The FBI background check is part of “pre-

processing,” and “[t]ypically, pre-processing is complete before USCIS receives DoD

24


notification because the NBC works to complete it while the DoD enhanced background checks

are outstanding.” Id. ¶ 7. The fact that certain pre-processing steps remain outstanding at the

time that USCIS is notified by DoD about a particular case is usually due to the fact that the

naturalization application was filed recently. Id. ¶¶ 7, 18. This would be the case, for example,

when a former member of the Kirwa class obtains a Form N-426 and files a naturalization

application in temporal proximity to a favorable MSSD determination. The mere fact that

USCIS is continuing to employ FBI background checks as part of the same “pre-processing” that

applies to all naturalization applications is not evidence of any unreasonable delay under 5

U.S.C. § 706(1).

Notwithstanding Plaintiffs’ allegations to the contrary, see ECF No. 119, at 32-33, the

practice described above is entirely consistent with Defendants’ representations to the Court

during the October 7, 2017 hearing. As reflected in the same portion of the transcript attached to

Plaintiffs’ motion, Defendants advised the Court of the following: “there are certain steps that

can be completed prior to the interview. For example, FBI checks and other background checks

that we do. Where we have an application that’s already finished . . . it is paused until the

interview, but we are working applications up until that interview point.” See ECF 119-13 (Oct.

27, 2017 Tr.), at 77:19-24 (emphasis added). At no point in this transcript did Defendants agree

to interview a naturalization applicant where pre-processing, which includes USCIS’s FBI

background checks, was not yet complete. Id. Rather, Defendants simply advised the Court that

USCIS would “proceed with everything . . . short of an interview,” while DoD background

25


checks remained outstanding. See ECF 119-13 (Oct. 27, 2017 Tr.), at 80:12-14. There is thus no

merit whatsoever to Plaintiffs’ claim that “Defendants have not done what they represented.”9

III. Plaintiffs Have Not Established Irreparable Harm

Plaintiffs have not met their “quite high” burden for establishing irreparable harm

sufficient to warrant a preliminary injunction. See Brown v. District of Columbia, 888 F. Supp.

2d 28 (D.D.C. 2012).10 This Court has already determined that such harm, though “regrettable,”

was not sufficient to override critical national security concerns. ECF No. 44, at 26. Plaintiffs

now allege purported additional harms as a result of Defendants’ “failure to comply with their

own July 7 Policy.” ECF No. 119, at 58. Despite Plaintiffs’ accusations, however, the facts and

the record demonstrate that Defendants are fully complying with the July 7 Guidance. See Ex, 1,

Renaud Dec. As the Renaud Declaration states, USCIS policy requires notification that DoD has

completed all background and security checks and reached a final MSSD before beginning to

adjudicate the military naturalization applications of MAVNIs. Id. ¶ 2. USCIS’s policies have

not changed as a result of the October 13, 2017 DoD Memorandum. Id. ¶ 3. There is no USCIS

policy to “hold” naturalization applications filed by MAVNIs, and neither attending Basic

Training nor serving on active duty is a prerequisite for naturalization. Id. ¶ 3. Simply put,

Plaintiffs cannot demonstrate imminent irreparable harm stemming from a failure to follow the

July 7 Guidance when USCIS is complying with that guidance.

9 This transcript, which dates back nearly five months, also entirely undermines any claim by Plaintiffs that USCIS’s use of its own FBI background check procedure is a “new policy” designed to “justify further delays.” ECF No. 119, at 46, 47. 10 This Court has previously stated that Plaintiffs face harm as a result of the DHS Security Screening Requirement, see ECF No. 44, at 17-19. Defendants incorporate by reference their previous arguments, see ECF No. 19, at 37-42, that Plaintiffs cannot demonstrate that the injury they claim is “of such imminence that there is a ‘clear and present’ need for equitable relief to prevent irreparable harm.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) ((citations, brackets, and internal quotation marks omitted)).

26


Plaintiffs’ claim of irreparable harm is also undermined by the court’s January 23 referral

to the magistrate judge of any disputes between the parties. ECF No. 97. Because the parties

were engaged in an effort to resolve many or all of the disputes raised in this motion with the

magistrate judge, before Plaintiffs unilaterally and deliberately sidestepped this Court’s referral

to the magistrate judge by filing this renewed motion, Plaintiffs cannot demonstrate irreparable

harm. Defendants have engaged in this process in good faith, and have provided solutions and

options to resolve disputes. ECF No. 105, at 7-9.

Defendants’ suggestions for resolving disputes specifically referenced some of the issues

that are raised in this preliminary injunction, including, “Concerns regarding non-acceptance of a

complete, signed, and certified N-426 for a reason other than the service member’s specific

conduct or sufficient grounds generally applicable to members of the military for re-

characterization of service; Concerns that a military naturalization applicant is being required to

attend Basic Training before being administered the Oath of Allegiance or before the N-400 is

adjudicated or the applicant is interviewed; and Concerns that a currently serving member of the

Armed Forces is being required to submit a Form DD-214 (e.g., through an RFE) before being

administered the Oath of Allegiance or before the N-400 is adjudicated or the applicant is

interviewed.” Id. at 9. Reasonably, Defendants stated that they were unable to accept specific

inquiries through their proposed dispute resolution process for this litigation regarding any status

update, or desire for a particular individual receive a faster adjudication, as USCIS has pre-

existing mechanisms for individuals to seek updates on their case, or request that a case be

expedited. Id. Rather than accept Defendants’ reasonable offer, or wait for an order from the

27


magistrate judge on the dispute resolution process, Plaintiffs filed the instant motion.11 Given

that Defendants have offered to provide a process to resolve the vast majority of the issues

Plaintiffs have raised in this motion, any claim of irreparable harm is manufactured and not

supported by the record.

Additionally, Plaintiffs now assert that they face irreparable harm because DoD “has

been ordering MAVNI recruits to renounce their foreign citizenship and relinquish their foreign

passports even where they are not even scheduled for naturalization interviews.” ECF No. 119 at

56. However, it is not DoD policy or practice to require evidence of renunciation of foreign

citizenship as part of the MSSD process. See Ex. 2, Declaration of Christopher Arendt Dec. ¶

4.12 Although MAVNI recruits are generally required to bring their non-U.S. passport to their

personnel interview and to allow a photocopy to be made, DoD policy dictates that the passport

is not taken or destroyed and is immediately returned to the MAVNI recruit after the photocopy

is made. Id. To the extent that individual MAVNI recruits are under the mistaken belief that

they are required to destroy or surrender their non-U.S. passports, this is the result of a

misunderstanding and Defendants have endeavored to clarify any confusion. Id. In fact, the US

11 For instance, Plaintiffs have submitted individual declarations that USCIS is not following the guidance in specific instances only. Other than perfunctorily using words like “systematically,” the TRO motion and record in the case show that any issues with not following the guidance are individualized, and thus not appropriate for a class-wide preliminary relief. The status report from Feb. 28, 2017, see e.g. ECF No. 109, show that USCIS is naturalizing individuals, without a DD-214, and other issues that Plaintiffs raise in this motion. Thus, this preliminary injunction motion is asking for relief on a class-wide basis, despite contrary evidence in the record that any issues, to the extent they exist at all, are not occurring on a class-wide basis. Thus, the relief that Plaintiffs are seeking is overbroad, and any order, to the extent one were to issue, it should be limited only to the specific individuals in which Plaintiffs have submitted a declaration claiming a violation of the July 7 policy. 12 Although it is DoD practice to request such evidence as part of a security clearance eligibility determination, non-U.S. citizens—such as MAVNI recruits—are not eligible to be considered for a security clearance and therefore are not required to provide evidence of renounced foreign citizenship. Ex. 2, ¶ 5.

28


Army Recruiting Command specifically advised its recruiters in August 2017 that MAVNI

recruits would not be required to destroy or surrender their passport as part of the interview

process. Id. To Defendants’ knowledge, no MAVNI recruit has ever been required to destroy or

surrender their non-U.S. passport as part of the MSSD interview process. Id. Indeed, Plaintiffs

notably do not even assert that any such passports have been destroyed. ECF No. 119, at 56-57.

Plaintiffs instead reference rumors and confusion, which are not sufficient to demonstrate any

likelihood of irreparable harm.13

Finally, Plaintiffs continue to assert that they face “immediate risks and apprehension”

regarding their current immigration status and the status of their family members. ECF No. 119

at 57. However, Plaintiffs do not allege that any MAVNI recruits, their spouses, or their children

have been placed in removal proceedings or otherwise subjected to immigration enforcement

actions. Moreover, Plaintiffs have known since entering the MAVNI program that their

immigration status or lawful presence must be maintained, that they will not achieve citizenship

on any specific timeframe, and that it is incumbent on them to maintain nonimmigrant status or

lawful presence. See ECF No. 19-5, at 4-5 (explaining the terms of the MAVNI program). As

demonstrated in Defendants’ bi-weekly reports, six of the eight named plaintiffs included in the

reports are in fact maintaining a lawful immigration status or lawful presence, and one additional

plaintiff has naturalized, in spite of Plaintiffs’ suggestion that the class members have no ability

to maintain proper immigration status. ECF No. 125, at 4. Plaintiffs signed service contracts,

understanding and agreeing to the terms, and accepting the risk that “that neither USCIS nor the

Army guarantees any Soldier US Citizenship, or that the Soldier will receive citizenship prior to

13 Additionally, although not mentioned in the new PI motion, Plaintiffs on the conference call with the Court asserted that the new February 14, 2018, memorandum regarding “non-deployability” could constitute irreparable harm. It does not. See Ex. 2, ¶ 4.

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graduation from Basic Training.” ECF No. 19-5 at 4. Plaintiffs have voluntarily selected this

course of action, and were on notice that no outcome was guaranteed nor timeline promised –

and that harms could ensue if they failed to take steps necessary to maintain a valid immigration

status or lawful presence before shipping to Basic Training. Accordingly, Plaintiffs’ alleged

harm with respect to their immigration status is speculative.

IV. Hardship To Defendants And The Public Interest Weigh Heavily Against Entry Of A Preliminary Injunction.

Plaintiffs have made no showing that their alleged “irreparable injury,” to the extent one

actually exists, outweighs the harm that an injunction would cause Defendants, or that it would

not “adversely affect [the] public interest[.]” Weinberger v. Romero-Barcelo, 456 U.S. 305, 312-

13 (1982). To the contrary, a preliminary injunction would prevent Defendants from fulfilling

their compelling need to protect and maintain national security interests, and to ensure that only

eligible individuals are granted U.S. citizenship. This failure is fatal to Plaintiffs’ request yet

again for the extraordinary remedy of a preliminary injunction.

Any order that enjoins a governmental entity from enforcing statutes enacted by the duly

elected representatives of the people constitutes an irreparable injury that weighs heavily against

the entry of injunctive relief. See New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345,

1351 (1977). Moreover, the Supreme Court has stated that “[f]ew interests can be more

compelling than a nation’s need to ensure its own security.” Wayte v. United States, 470 U.S.

598, 611 (1985). Here, Congress has explicitly charged DHS with enforcing immigration laws.

Additionally, Congress has mandated that USCIS conduct an investigation of naturalization

applicants. 8 U.S.C. § 1446(a); 8 C.F.R. § 335.1. An injunction would flout these compelling

interests by preventing Defendants from addressing security risks posed by the MAVNI program

and would undercut USCIS’ ability to fully vet and screen MAVNI recruits who are seeking to

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naturalize. ECF No. 19-6, ¶¶ 20-27. As this Court has previously determined, “[w]hile

[Plaintiffs’] plight is regrettable, it cannot be concluded at this time that it is sufficient to

override national security concerns.” ECF No. 44 at 26. Consequently, the equities and public

interest in this case strongly weigh against the issuance of a preliminary injunction.

CONCLUSION

For all of the foregoing reasons, the Court should deny Plaintiffs’ motion for preliminary

injunction.

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Dated: April 3, 2018

Respectfully Submitted

CHAD A. READLER Acting Assistant Attorney General Civil Division

WILLIAM C. PEACHEY Director, Office of Immigration Litigation

COLIN A. KISOR Deputy Director

By: /s/ Elianis N. PerezELIANIS N. PEREZ Assistant Director U.S. Department of Justice, Civil Division Office of Immigration Litigation – District Court Section P.O. Box 868, Washington, DC 20044 Telephone: 202-616-9124 Facsimile: 202-305-7000 E-Mail: [email protected]

ATTORNEYS FOR DEFENDANTS

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CERTIFICATE OF SERVICE Civil Action No. 1:17-00998-ESH

I HEREBY CERTIFY that on this 3rd day of April, 2018, a true copy of the foregoing

was filed with the Clerk of the Court using the CM/ECF system which sent notification of such

filing via e-mail to the following:

Joseph J. LoBue FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP 801 17th Street, NW Washington, DC 20006 (202) 639-7493 (202)639-7003 (fax)[email protected]

ATTORNEY FOR PLAINTIFFS

/s/ Elianis N. Perez Elianis N. Perez Assistant Director United States Department of Justice ATTORNEY FOR DEFENDANTS

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EXHIBIT 1

Case 1:17-cv-00998-ESH-RMM Document 128-1 Filed 04/03/18 Page 1 of 11











EXHIBIT 2







EXHIBIT 3


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1

UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

KUSUMA NIO, et al.,

Plaintiffs,

v.

U.S. DEPARTMENT OFHOMELAND SECURITY,

Defendant.________________________

))))))))))

Civil No. 17-998

Washington, D.C.

Friday, February 16, 2018

TRANSCRIPT OF MISCELLANEOUS HEARINGBEFORE THE HONORABLE ROBIN M. MERIWEATHER

UNITED STATES MAGISTRATE JUDGE

APPEARANCES:

For the Plaintiffs: Douglas W. Baruch, Esq.Jennifer M. Wollenberg, Esq.Joseph J. LoBue, Esq.Neaha Raol, Esq.Webster Beary, Esq.Shaun Gates, Esq.Katherine St. Romaine, Esq.FRIED, FRANK, HARRIS, SHRIVER &

JACOBSON LLP801 17th Street, NWWashington, DC 20006

For the Defendants: Colin Abbott Kisor, Esq.Sarah Lake Vuong, Esq.Elianis N. Perez, Esq.UNITED STATES DEPARTMENT OF JUSTICECivil DivisionP.O. Box 878Ben Franklin StationWashington, DC 20044

Court Reporter: PATRICIA A. KANESHIRO-MILLER, RMR, CRRU.S. Courthouse, Room 4700A333 Constitution Avenue, NWWashington, DC 20001(202) 354-3243

Proceedings reported by stenotype shorthand.Transcript produced by computer-aided transcription.


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people who are not in the class are Kirwa class members who

soon will be a member of this class. Actually, in order to

ease their burden, they should just be providing the

information for both classes at the same time, so that as

Kirwa class members become Nio class members, they're already

on the reporting and there is nothing that has to be altered

in terms of who they're reporting on. So I think if somebody

would go back and see what Judge Huvelle said on

January 23rd, this idea that somehow this over inclusiveness

absolves them from reporting or even giving us the prior

version of the report unredacted is not what Judge Huvelle

said or intended based on how I read the transcript.

THE COURT: You can stay there because I want to

switch to the dispute resolution mechanism. And this is a

question that I have so that I can have some context in

coming up with a dispute resolution mechanism. Without going

into the details of exactly what the disputes were, what

kinds of disputes have you had with the defense in the past

and what types of disputes do you anticipate having in the

future?

MS. WOLLENBERG: Your Honor, there's a few different

categories. I'm not sure I can summarize all of them. But

one category that led to the hearing on January 23rd were

about individual class members who knew that they were done

with the DoD background check process, including all the way


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through DoD's adjudications, because they had received ship

dates from the military and were being told that they were

shipping to basic training. The DoD enhanced background

checks are a prerequisite to being able to ship to basic

training. So they also knew then that under the current

USCIS policy, they should be moving forward with the

naturalization process. Yet they were being told by USCIS:

Well, we don't have the information from DoD. We can't move

you forward. Or now you need something more from DoD. Or

you have to wait until after you're done with basic training

because basic training or active duty is a requirement, which

it is not and the Court has made clear that active duty is

not a requirement under this statute.

We brought that to the attention of defendants first.

We're not able to resolve it. That led to us bringing it to

the Court. And on January 23rd, when it got to the Court,

miraculously, all four of those people who had been in that

position had been naturalized before we got to the Court, and

the defendant said they did that within 24 to 48 hours; if we

had just given them more specific details, they would have

done it sooner and that they will do so going forward.

We now know they're not doing so going forward

because to this day, as of this morning, we have given them

the names of 50 class members who are in the exact same

circumstances. We started on January 23rd up through this


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morning, and they have not acted within 24 to 48 hours.

These soldiers are being told they have to wait until after

they're done with basic training and now AIT training, as

well, and only one of them has been naturalized. And the one

that has been naturalized is a medical MAVNI who doesn't go

to basic training. He has to be naturalized before he can

move on to his initial training. So it is to the benefit of

the government to have him naturalized. So we think that

they are, in fact, not handling these disputes as they told

the Court that they would. They told the Court they would

resolve them within 24 to 48 hours. And so now we have to

have a mechanism for those kinds of things. Some of them

become time sensitive, because as they aren't addressed by

the government, these people are being shipped to basic

training and we are being told that they are no longer being

naturalized at basic training and we don't have access to

them because they have restrictions with respect to e-mail

and phone calls while they're at basic training.

There are other types of disputes, including some

that are ripe for the Court to hear. One such dispute is

about the FBI background checks. Just to give you an example

of the types of disputes: The FBI background checks in the

normal naturalization process for non-MAVNIs, USCIS gets

background checks from the FBI. They order a background

check. The FBI does it. The FBI sends it back to USCIS.


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Then USCIS schedules their naturalization interview. For the

MAVNIs who are now getting the equivalent of a top secret

clearance check, the FBI background checks are done as part

of that, as you can imagine. So by the time the MAVNI is

done with the DoD enhanced background check, the FBI checks

are done. But USCIS is now telling the soldiers who are done

with their DoD enhanced background checks that USCIS cannot

proceed with their naturalization application because they're

waiting for the FBI to now do a redundant check and the FBI

to tell them that that is done, to tell USCIS that is done.

If you're familiar with naturalization cases, people

have problems with FBI background check delays. This could

add another however many months of delays here when it has

actually already been done. So we think that is one example

of the type of dispute that is ripe for the Court to hear.

THE COURT: That kind of goes with the other question

I was going to ask. I was trying to figure out if the

disputes deal with specific individuals who are class members

or if some of them are more like on a broader almost

systematic level.

MS. WOLLENBERG: I would say all of them are

systematic, and the FBI background check would be an example

of one, but some of them are more time sensitive, and we know

that the MAVNIs on an individualized basis face them at a

particular point in time; for example, the ones I described


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to you at first. So we have kind of those individualized

ones. If the government is not going to be addressing those

within 24 to 48 hours, like they told the Court they would,

then that would be on an individualized basis we would have

to bring it to the Court and explain, this person is in this

situation, they're done with their DoD enhanced background

checks, their shipping date is imminent and yet USCIS is not

proceeding with their application. But the other ones I

would say you wouldn't deal with it on an individualized

basis because it is more subject matter rather than personal.

THE COURT: So the defendants have proposed to create

an e-mail box for class counsel that would be a means of

communicating certain types of concerns. They say that the

mailbox could be used to raise concerns about nonacceptance

of a complete, signed, and certified N-426; concerns that a

military naturalization act is being required to attend basic

training before being administered the oath of allegiance or

before the N-400 is adjudicated or the applicant is

interviewed, and concerns that a currently serving member of

the armed forces is being required to submit a DD-214 before

being administered the oath of allegiance or before the N-400

is adjudicated or the applicant is interviewed.

If this mailbox were created in the way that

defendants propose, would that meet plaintiffs' concerns

about being able to present the issues, or does this


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proposal, or other types of disputes that you have that would

not fit within the parameters that defendants are offering?

MS. WOLLENBERG: There are types of disputes that

don't fit in the parameters. This box is about USCIS. It

has nothing to do with DoD. This proposal limits the types

of disputes that can be brought to the box even with respect

to USCIS, and in a way that suggests perhaps even the ones we

described to you would not be able to be brought, the ones

that we brought to the Court on January 23rd would not even

be able to be brought to that box. And it is not a dispute

resolution mechanism because it has no point in time where we

are able to have a meet-and-confer between the parties and

then bring something to the Court. And then the timing that

is involved there would not allow for most of these disputes

to be resolved before the injury is already suffered. So it

doesn't work from a lot of different perspectives, Your

Honor.

THE COURT: Relatedly, do all of your disputes

require a 48-hour or 2-business-day turnaround time, or is it

more of a case-by-case situation of how urgent the issue is?

Because I think you proposed to have a response from the

defendants within two business days of any dispute that you

identify.

MS. WOLLENBERG: I'm trying to find it here, Your

Honor.


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THE COURT: Your proposal says, the notified party

shall investigate the matters as quickly as possible and

shall use best efforts to address the dispute within two

business days of receipt.

MS. WOLLENBERG: Right, Your Honor. That's just the

investigation period. I'm sorry. I was confused. I thought

you meant the entire process. Yes, that's what we proposed

for the investigation period, and we got that number from

what they said themselves on the January 23rd hearing and

from the examples that they provided at the January 23rd

hearing where they said, Your Honor, the sky is falling, the

sky isn't falling if only they had provided us these

declarations or specifics earlier, we would have addressed

it, and once we had these, it was easily resolved in one to

two days. So that's where that number comes from.

For most of these soldiers now, that turnaround time

is necessary because DoD or USCIS has been sitting on it so

long that they are going to be shipped to basic training or

they have been eligible for naturalization processing for

weeks and months, and it is a completely unreasonable delay,

and they're missing out on every benefit that comes along

with citizenship if they're eligible for citizenship during

that time. And as we know, there is case law that says every

day of missed citizenship is an irreparable injury. But in

terms of subject matter disputes, the FBI one, for example,


Documents

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF …€¦ · Case 1:17-cv-00998-ESH-RMM Document 128 Filed 04/03/18 Page 8 of 39 MSSD is the culmination of DoD’s enhanced background