Al–rifahe v. Mayorkas

• Decision Date: 07 March 2011
• Docket Number: Civil No. 10–1971 (JRT/FLN).
• Citation: 776 F.Supp.2d 927
• Parties: Nassir AL–RIFAHE, Plaintiff,v.Alejandro MAYORKAS, Director, U.S. Citizenship and Immigration Services Washington, D.C., Janet Napolitano, Secretary, Department of Homeland Security Washington, D.C., and Robert Mueller, Director, Federal Bureau of Investigation Washington, D.C., Defendants.
• Court: U.S. District Court — District of Minnesota

776 F.Supp.2d 927

Nassir AL–RIFAHE, Plaintiff,

v.Alejandro MAYORKAS, Director, U.S. Citizenship and Immigration Services Washington, D.C., Janet Napolitano, Secretary, Department of Homeland Security Washington, D.C., and Robert Mueller, Director, Federal Bureau of Investigation Washington, D.C., Defendants.

Civil No. 10–1971 (JRT/FLN).

United States District Court, D. Minnesota.

March 7, 2011.

Marc Prokosch, Karam & Associates, Bloomington, MN, for Plaintiff.Kimberly E. Wiggans and Craig W. Kuhn, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC; and Jerry Wilhelm and Lonnie F. Bryan, Assistant United States Attorneys, Office of the United States Attorney, Minneapolis, MN, for Defendants.

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS' MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT

JOHN R. TUNHEIM, District Judge.

Nassir Al–Rifahe was granted asylum by the United States in 1997. He has sued the Director of the United States Citizenship and Immigration Services (“USCIS”), the Secretary of the Department of Homeland Security (“DHS”), and the Director of the Federal Bureau of Investigations (“FBI”) (collectively, “the government” or “defendants”) to compel the disposition of his I–485 application seeking lawful permanent residency (“LPR”).

The government has moved to dismiss the action or, in the alternative, for summary judgment. The Court will grant the motion to dismiss Al–Rifahe's claims against the FBI as moot. However, because of the unusually long wait in the adjudication of his application (over thirteen years) and an internal memorandum exempting from inadmissibility the Tier III terrorist organization to which he belonged, the Court will deny defendants' motion in all other regards.

BACKGROUND

Al–Rifahe is a native and citizen of Iraq. He worked as an Information Officer in the Iraqi National Congress (“INC”) and has been a member of the INC since 1992. Al–Rifahe was granted asylum in the United States due to his involvement with the United States Armed Forces in Iraq during Operation Safe Haven. On March 3, 1998, he filed an I–485 application to adjust his status to LPR, that of a “green card” holder.

USCIS has neither granted nor denied plaintiff's application to date. According to the government, Al–Rifahe's application has been pending for over thirteen years because the USCIS determined that the INC meets the definition of a Tier III undesignated terrorist organization. (See Decl. of Evelyn M. Martin ¶ 10, June 30, 2010, Docket No. 9.)

In the years following Al–Rifahe's I–485 application, Congress has passed several statutes relevant to USCIS' adjudication of his application. Specifically, according to the government, the USA PATRIOT ACT, Pub. L. No. 107–56, 115 Stat. 272 (2001), expanded the terrorism-related grounds on which individuals' I–485 applications could be denied, broadened the definition of terrorist activity, and created new categories of terrorist organization including undesignated or “Tier III” terrorist organizations. The REAL ID Act, Pub. L. No. 109–13, 119 Stat. 231 (2005), further broadened the bars to asylum. See Khan v. Holder, 584 F.3d 773, 779 (9th Cir.2009).

The Consolidated Appropriations Act (“CAA”) of 2008, Pub. L. No. 110–161, 121 Stat. 1844 (2007), enabled the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, to exercise discretionary authority to make exceptions to inadmissibility grounds relating to Tier III organizations. Panchishak v. U.S. Dept. of Homeland Sec., No. 08–6448, 2010 WL 3958772, at *1 (S.D.N.Y. Sept. 29, 2010). Accordingly, while providing “material support” to terrorist organizations, including undesignated Tier III entities, renders an alien inadmissible under 8 U.S.C. § 1182(a)(3)(B)(iv)(VI), the Secretary of Homeland Security retains “sole unreviewable discretion” to exempt individuals from that categorical bar under 8 U.S.C. § 1182(d)(3)(B)(i).

On March 26, 2008, the Deputy Director of USCIS issued a memorandum providing guidance on the adjudication of cases involving terrorism-related inadmissibility. The memorandum instructed adjudicators to withhold adjudication of cases regarding individuals who are inadmissible for activities associated with a Tier III organization. Applications of individuals who might qualify for an exemption under the new discretionary authority under the CAA were, pursuant to the memorandum, to be passed on to appropriate headquarters for eventual consideration.

Another USCIS policy memorandum of January 23, 2010, however, provided:

On September 21, 2009, the Secretary of Homeland Security and the Secretary of State, in consultation with each other and the Attorney General, exercised their authority not to apply the terrorist-related grounds of inadmissibility ... for certain activities and associations involving the Iraqi National Congress.... Aliens whose cases remain on hold solely because they ... provided material support, was a representative or member of, persuaded others to support, or received military-type training on behalf of the INC ... may be considered for a discretionary exemption.

(Ex. A, Docket No. 15.)

On May 11, 2010, Al–Rifahe ¹ filed the instant action seeking to compel the government to find that he is not inadmissible under 8 U.S.C. § 1182(a)(3)(B), to adjudicate his I–485 application, to timely disseminate regulations to implement exemptions regarding terrorism-related inadmissibility grounds, and to apply those guidelines to himself.

Defendants have filed a motion to dismiss or, in the alternative, for summary judgment on the grounds that Al–Rifahe lacks standing to file suit against the FBI, the Court lacks subject matter jurisdiction to consider Al–Rifahe's claims, and the USCIS' decision to place an indefinite hold on Al–Rifahe's application is both discretionary and has not resulted in an unreasonable delay.

ANALYSIS

I. MOTION TO DISMISS UNDER RULE 12(b)(1)

The government has moved to dismiss Al–Rifahe's claims against the FBI for lack of subject matter jurisdiction based on his lack of Article III standing. Defendants have also moved to dismiss Al–Rifahe's claims alleging unreasonable delay; according to the government, the Court's jurisdiction over those claims has been statutorily stripped.

A. Standard of Review

The Court may dismiss a complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). “Dismissal for lack of subject matter jurisdiction will not be granted lightly. Dismissal is proper, however, when a facial attack on a complaint's alleged basis for subject matter jurisdiction shows there is no basis for jurisdiction.” Wheeler v. St. Louis Sw. Ry., 90 F.3d 327, 329 (8th Cir.1996) (citation omitted). It is the burden of the party asserting jurisdiction to prove by a preponderance of the evidence that jurisdiction exists. V S Ltd. P'ship v. Dep't of Hous. and Urban Dev., 235 F.3d 1109, 1112 (8th Cir.2000).

In resolving a motion to dismiss under Rule 12(b)(1), the Court may consider evidence extrinsic to the complaint without converting the motion into one for summary judgment. See Osborn v. United States, 918 F.2d 724, 729–30 (8th Cir.1990). It may also make “factual determinations about the availability of ... relief” in considering a jurisdictional challenge under Rule 12(b)(1). Faibisch v. Univ. of Minn., 304 F.3d 797, 801 (8th Cir.2002).

B. Claims Against Defendant Mueller

Under Article III, § 2 of the United States Constitution, federal subject matter jurisdiction is limited to actual cases and controversies. Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir.2000). A court lacks subject matter jurisdiction over a case in which a plaintiff has not established standing to file suit under Article III. See, e.g., Stewart v. City of Red Wing, 554 F.Supp.2d 924, 932 n. 8 (D.Minn.2008). “The constitutional minimum of standing requires an ‘injury in fact,’ ‘a causal connection between the injury and the conduct complained of’ and a likelihood ‘the injury will be redressed by a favorable decision.’ ” Medalie v. Bayer Corp., 510 F.3d 828, 829 (8th Cir.2007) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).

The government asserts that Al–Rifahe lacks standing to sue defendant Robert Mueller, Director of the FBI, because he is not suffering any alleged injury resulting from the FBI's activities. The actions of the FBI which Al–Rifahe requests this Court to compel—the completion of a “name check” and other background checks—have already been done without judicial intervention. Al–Rifahe concedes that the claims regarding the FBI no longer pose a live controversy. Accordingly, Al–Rifahe's claims against defendant Mueller are dismissed as moot.

C. Claims Alleging Unreasonable Delay

Defendants argue that two provisions of the Immigration and Nationality Act (“INA”) deprive the Court of subject matter jurisdiction over Al–Rifahe's claims alleging unreasonable delay in the adjudication of his I–485 application.

1. 8 U.S.C. § 1252(a)(2)(B)(ii)

First, defendants cite 8 U.S.C. § 1252(a)(2)(B)(ii), which provides:

Notwithstanding any other provision of law ... no court shall have jurisdiction to review ... any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title.

(emphasis added). Section 1159(b), which governs status adjustment for asylees, falls under the cited subchapter and provides for discretionary authority regarding the ultimate decision of whether or not to adjust the applicant's status. See 8 U.S.C. § 1159(b) (“The Secretary of Homeland Security or the Attorney General, in the Secretary's or the Attorney...