Asmai v. Johnson

• Decision Date: 19 April 2016
• Docket Number: No. 2:14-CV-2619-TLN-AC,2:14-CV-2619-TLN-AC
• Citation: 182 F.Supp.3d 1086
• Parties: Timorshah Asmai, Plaintiff, v. Jeh Johnson, Department of Homeland Security, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

182 F.Supp.3d 1086

Timorshah Asmai, Plaintiff,

v.Jeh Johnson, Department of Homeland Security, et al., Defendants.

No. 2:14-CV-2619-TLN-AC

United States District Court, E.D. California.

Signed April 19, 2016

Filed April 21, 2016

Ruby Esther Lieberman, Law Office of Ruby Lieberman, San Francisco, CA, for Plaintiff.

Audrey Benison Hemesath, United States Attorney's Office, Sacramento, CA, for Defendants.

ORDER

Troy L. Nunley, United States District Judge

This matter is before the Court pursuant to Defendants Jeh Johnson, Eric H. Holder, Jr., James Comey, Leon Rodriguez, and Mari-Carmen Jordan's (collectively referred to as "Defendants") Motion to Dismiss for Lack of Jurisdiction, in the alternative , Motion for Summary Judgment. (ECF No. 13.) Plaintiff Timorshah Asmai ("Plaintiff") has filed an opposition (ECF No. 16), to which Defendants have replied (ECF No. 19). The Court has carefully considered the arguments raised by the parties and for the reasons set forth hereby DENIES Defendants' motion.

I. FACTUAL BACKGROUND

Plaintiff filed a complaint for writ of mandamus on November 7, 2014. (ECF No. 1.) In which he alleges as follows: Plaintiff and his wife and daughter entered the U.S. as refugees from Afghanistan on December 22, 1999. (ECF No. 1 at ¶ 11.) On April 8, 2001, Mr. Asmai submitted a Form I-485, Application to Adjust to Permanent Resident Status. (ECF No. 1 at ¶ 13.) During the period of time that Plaintiff's application has been unadjudicated, his wife had three children, all born in the U.S., and his wife and oldest child became U.S. citizens. (ECF No. 1 at ¶ 15.)

Plaintiff has made numerous inquiries to the Department of Homeland Security ("DHS") regarding his application for adjustments of status, and they have sometimes gone unanswered, and other times have resulted in contradictory responses. (ECF No. 1 at ¶ 16.) In September 2010, in response to a telephonic inquiry, Plaintiff was told that his case was on hold because of INA § 212(a)(3)(B) ("Terrorist Activities"), although there was no indication given as to which subsection of this law would apply to Plaintiff. (ECF No. 1 at ¶ 18.) Plaintiff alleges that a thorough review of the entire statute and his history reveals that nothing in this statute applies to him. (ECF No. 1 at ¶ 18.) In a letter dated September 30, 2011, Congressman Daniel Lungren responded to Plaintiff's request for help by stating that his office initiated an inquiry to the United States Citizenship and Immigration Services ("USCIS") and was informed that Plaintiff's case "is still pending clearance of the routine security checks." (ECF No. 1 at ¶ 17.)

Since filing this suit, Plaintiff was informed in January 2015, that he is barred from adjustment of status for engaging in combat on behalf of a group called Dostum's Forces, which is considered as a Tier III terrorist organization. Thus, his application was put on hold and will not be executed unless or until an exception to the terrorist-related inadmissibility standards is created. Plaintiff responded with a sworn statement and supporting documents explaining that: he had never worked on behalf of Dostum's Forces; he had only worked as an employee of the Afghanistan Air Force when he was fighting the Taliban; during the time period Plaintiff is accused of working for Dostum's Forces he was working exclusively as a pilot in the Afghanistan Air Force; and he explained how the notes that were attached to his 1999 application for refugee status—made by someone other than himself in a language he could not, at the time, read or write—could have contained the misinformation that he was connected to Dostum's forces. (See Pl.'s Exs. K, L and M in Supp. of Opp., ECF No. 16-1.) DHS sent a letter stating that Plaintiff's explanation was not credible and that Plaintiff's assertions were factually inaccurate. (Supp. Canaan Decl., ECF No. 13-2 at ¶ 4.)

Plaintiff's application is still pending after a period of almost fifteen years, and thus Plaintiff seeks an order from this Court requiring Defendants to adjudicate Plaintiff's application for adjustment of status. Defendants have filed the instant Motion to Dismiss for Lack of Jurisdiction, in the alternative , Motion for Summary Judgment. (ECF No. 13.)

II. LEGAL STANDARDS

A. Motion to Dismiss

A party may move to dismiss a claim for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). "When subject matter jurisdiction is challenged under Federal Rule of [Civil] Procedure 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion." Tosco Corp. v. Communities for a Better Env't , 236 F.3d 495, 499 (9th Cir.2001) (abrogated on other grounds by Hertz Corp. v. Friend , 559 U.S. 77, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010) ). " 'Unless the jurisdictional issue is inextricable from the merits of a case, the court may determine jurisdiction on a motion to dismiss for lack of jurisdiction under Rule 12(b)(1) [.]' " Robinson v. U.S. , 586 F.3d 683, 685 (9th Cir.2009) (internal citations omitted). If the court determines at any time that it lacks subject matter jurisdiction "the court must dismiss the action." Fed. R. Civ. P. 12(h)(3).

In addition to pleading valid jurisdiction, a plaintiff must also allege facts giving rise to a case or controversy which is "ripe" for adjudication. See United States Nat'l Bank of Or. v. Indep. Ins. Agents of Am. , 508 U.S. 439, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993). A court's subject matter jurisdiction is limited to matters "ripe" for adjudication, and if a case is not ripe, the court should dismiss it. Fed. R. Civ. P. 12(b)(1) ; Chandler v. State Farm Mutual Automobile Insurance Co. , 598 F.3d 1115, 1121, 1122 (9th Cir.2010).

B. Summary Judgment

Summary judgment is appropriate when the moving party demonstrates no genuine issue as to any material fact exists, and therefore, the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c) ; Adickes v. S.H. Kress & Co. , 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis of its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file." Id. at 324, 106 S.Ct. 2548 (internal quotations omitted). Indeed, summary judgment should be entered against a party who does not make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 585–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; First Nat'l Bank of Ariz. v. Cities Serv. Co. , 391 U.S. 253, 288–89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed. R. Civ. P. 56(c). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 251–52, 106 S.Ct. 2505.

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank , 391 U.S. at 288–89, 88 S.Ct. 1575. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.' " Matsushita , 475 U.S. at 587, 106 S.Ct. 1348 (quoting Rule 56(e) advisory committee's note on 1963 amendments).

In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with any applicable affidavits. Fed. R. Civ. P. 56(c) ; SEC v. Seaboard Corp. , 677 F.2d 1301, 1305–06 (9th Cir.1982). The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts pleaded before the court must be drawn in favor of the opposing party. Anderson , 477 U.S. at 255, 106 S.Ct. 2505. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines , 602 F.Supp. 1224, 1244–45 (E.D.Cal.1985), aff'd , 810 F.2d 898 (9th Cir.1987). Finally, to demonstrate a genuine issue that necessitates a jury trial, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita , 475 U.S. at 586, 106 S.Ct. 1348. "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.' " Id. at 587, 106 S.Ct. 1348.

III....