aslam update
Govt trying to appeal this case. see Feb 4 order from Judge:
The government has filed an Emergency Motion for Stay Pending Possible Appeal [46] or, in the alternative, a Motion for Enlargement of Time Within Which to Comply With Injunctive Order [47], seeking either a permanent stay of the required agency action or a stay of an additional 21 days to allow the government time to seek a stay from the Fourth Circuit. For the reasons stated below, the Court will deny the government's motion for a stay, but will partially grant its request for an enlargement [*3] of time.
The government also argues that the drastic nature of the Court's remedy increases the likelihood of succeeding on the merits. See Gov't Mem. in Support at 10 ("[T]he vast majority of courts have simply directed -- consistent with the provisions of the APA and the general mandamus statute -- that USCIS either grant or deny the adjustment application in question within a time certain."). Contrary to the government's view, the Court ordered less drastic relief by deliberately avoiding any requirement that the CIS complete its adjudication of plaintiff's application before receiving the results of his name check. [2] Instead, the Order allows the CIS to request additional time for completion of the name check upon a showing of good cause. [3] The Court's order was narrowly tailored to remedy the existing situation -- CIS's inability or unwillingness to take responsibility for, or provide any information about, the delay in completing plaintiff's name check. The narrow scope of the Order does not support the government's [*5] argument for a stay.
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2 See Dibbins Decl. P 5 ("It would be unconscionable and potentially risk the safety and security of the nation for USCIS to grant United States lawful permanent resident status to anyone without first ensuring that the government's law enforcement databases do not contain verified derogatory information about the alien.").3 To the extent that any disclosure about the progress of the name check would reveal sensitive information, the Court would allow submission of pleadings under seal for ex parte review. See Aslam, 2008 U.S. Dist. LEXIS 5616,2008 WL 220908, at *7 n.9.
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On the second prong, the government argues that a stay is necessary to preserve a live controversy for appellate review. However, the government fails to demonstrate how the CIS's compliance with the court-ordered relief would effectively preclude appellate review.
The record does not provide any information upon which to evaluate the expected processing times for the fourth stage of the FBI's name check process, or how those times would be impacted by an "expedite" request, and the Court has not mandated completion of the name check within a date certain. Accordingly, there is no basis upon which to conclude [*6] that the CIS's compliance with the Court's order will moot any appeal.
Even if the Order were stayed, there is no guarantee that the government's right to appeal would be preserved. Despite repeated requests from the Court, the CIS has not inquired into the status of plaintiff's name check. For all the agency knows, the FBI could return the results of plaintiff's name check next week under its "first-in, first-served" processing policy, thereby mooting the appeal. [4]
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4 The Court assumes that, upon receipt of the name check, the CIS would not deliberately delay a final adjudication for the sole purpose of maintaining a live controversy.
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The government [*7] asserts that the public interest favors a stay to allow the Fourth Circuit an opportunity to resolve the split among courts in this district. However, this argument constitutes a restatement of the second prong of the Long test and, for the reasons already discussed, is rejected. Moreover, there is a strong public interest in efficient responses to applications of adjustment of status. Because the government has failed to make a sufficient showing for a stay, the motion will be denied.
Given the paucity of information in the record, the Court cannot conclude that a stay is necessary or sufficient to preserve the government's interest in maintaining a live controversy.
