Ayyoubi v. Holder, Case No. 4:10-CV-1881 SNLJ
| Decision Date | 22 July 2011 |
| Docket Number | Case No. 4:10-CV-1881 SNLJ |
| Parties | SALAHADDIN AYYOUBI, Plaintiff, v. ERIC HOLDER, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
Salahaddin Ayyoubi immigrated to this country as a refugee from Iran on May 27, 2003. He applied to the United States Citizenship and Immigration Service ("USCIS," formerly known as the Immigration and Naturalization Service, or "INS") for a change of status from "refugee" to "permanent resident" on March 30, 2006. Ayyoubi's application was initially denied, then reopened, then placed on indefinite hold on April 28, 2008. Ayyoubi's application remains on hold now, three years later. Ayyoubi brought this lawsuit seeking a declaratory judgment that he is eligible for adjustment of status and that the defendants' failure to adjudicate his application violates United States statutes and the Constitution, or enjoining defendants from further delaying their decision and requiring adjudication within 30 days.
Defendants Eric Holder (in his official capacity as the Attorney General of the United States), Janet Napolitano (in her official capacity as Secretary of the Department of Homeland Security), Alejandro Mayorkas (in his official capacity as Director of the USCIS), Marilyn Wiles (in her official capacity as Director of the Nebraska Service Center for the USCIS), and Donald Neufeld (in his official capacity as Chief of Service Center Operations for the USCIS) havemoved to dismiss or, in the alternative, for summary judgment (#15). Plaintiff moved for summary judgment (#20). Responsive memoranda have been filed, and this matter is now ripe for disposition.
The undisputed facts are as follows. Plaintiff is a Kurdish refugee from Iran. On May 23, 2003, INS, now known as USCIS, granted plaintiff refugee status after finding that he, as a member of the Kurdish Democratic Party of Iran ("KDPI"), had a well-founded fear of future persecution by Iranian Intelligence authorities. Plaintiff moved to St. Louis (where he now resides) and on March 30, 2006 filed his I-485 Application seeking an "adjustment of status" to "permanent resident" (a process colloquially known as obtaining a "green card"). On February 26, 2008, USCIS denied plaintiff's Application because he had allegedly provided "material support" to and received "military training from" the KDPI, which USCIS concluded was a Tier III "terrorist organization" as defined by 8 U.S.C. § 1182(a)(3)(B)(vi). USCIS determined that plaintiff was therefore statutorily ineligible for adjustment of status for "engag[ing] in terrorist activity." Then, on April 26, 2008, USCIS notified plaintiff that it had reopened his case and vacated its February 26, 2008 decision. USCIS also informed Mr. Ayyoubi that it was putting his case on hold pursuant to USCIS national policy, and that "[n]o further adjudicative action [would] be taken at [that] time." Defendants maintain that plaintiff is inadmissible "to the United States for having received military-type training" and for "engaging in terrorist activity as...defined by 8 U.S.C. §1182(a)(3)(B)(iv)(VI) (material support)." They admit that "background and security checks are not causing delay in adjudication in this case." Instead,defendants are waiting "for formal policy guidance that takes [plaintiff's] case out of 'hold-in-abeyance status.'"
Plaintiff denies that he engaged in any terrorist activity and that the KDPI is a terrorist organization. As part of his refugee application process, plaintiff fully disclosed to INS his membership and activities with the KDPI. INS had to determine whether plaintiff was "inadmissible" to the United States pursuant to 8 U.S.C. § 1182(a)(3)(B), which specifies the terrorism-related inadmissibility grounds. Plaintiff alleges that INS thus determined that none of the provisions of Section 1182(a) barred his entry to the United States at that time, but defendants aver that "the grounds of inadmissibility that applied in 2002 were not noted by the officer who granted refugee status" to plaintiff.
However, USCIS later determined that, due to plaintiff's having provided material support to and received military training from the KDPI, which is a Tier III undesignated terrorist organization as defined by the Immigration and Nationality Act ("INA"), he is now inadmissible unless he receives an exception. The Secretary of the Department of Homeland Security has discretionary authority to exempt certain Tier III groups or individuals where appropriate; although KDPI is not included in the current list of exempted groups, plaintiff could potentially be exempted in the future. Certain other refugees who provided material support to and received military training from the KDPI have received exemptions, been granted permanent residence, and, in some cases, have become United States citizens.
Plaintiff states that he has long desired to be a citizen of the United States, but he cannot start on the path to citizenship until he is a permanent resident. Furthermore, he says he cannot travel internationally because he worries that he would be denied re-entry to the United Statesgiven his precarious status — particularly in light of the fact that the USCIS has now determined that his association with the KDPI rendered him "inadmissible" into the United States. He also desires permanent residency status because he wants to join the United States Army, which requires that he be a permanent resident. Finally, plaintiff says that friends and family are suspicious as to why his application for permanent residency has been pending for so long, especially because other men in his position — who have similarly provided assistance to and received military training from the KDPI — have been granted permanent residency and, ultimately, citizenship.
Thus, on October 6, 2010, plaintiff filed this action seeking (1) a declaratory judgment that he is eligible for adjustment of status pursuant to 8 U.S.C. § 209; (2) a declaratory judgment that defendants' failure to adjudicate plaintiff's I-485 Application violates 8 U.S.C. § 1159, 8 C.F.R. § 209.1(e); the APA, 5 U.S.C. §§ 555(b) and 706; U.S. obligations under customary and treaty-based international law, and the U.S. Constitution, Amendment V; (3) in the alternative, a declaration that, even if the KDPI is a Tier III terrorist organization, INA 212(d)(3)(B)(I) does not prevent defendants Napolitano and Holder from considering his case for an individualized exemption, and enjoin defendants from further delaying review of plaintiff's case for such an exemption; (4) an injunction preventing defendants from further delaying a decision on plaintiff's I-485 Application, ordering defendants to adjudicate Plaintiff's I-485 on or before 30 days from the Court's judgment in this case, and ordering defendants to promptly inform plaintiff and the Court of such decision; and (5) that the Court retain jurisdiction during the pendency of the above relief orders to ensure compliance by defendants. Plaintiff also seeks reasonable attorneys' fees and costs.
Defendants have moved to dismiss for lack of subject matter jurisdiction, and, in the alternative, they seek summary judgment on plaintiff's claim that defendants have unreasonably delayed his Application. Plaintiff also moved for summary judgment, seeking an order that defendants had unreasonably delayed his Application and requiring immediate adjudication.
The Court may dismiss a complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). 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).
The purpose of a Rule 12(b)(6) motion to dismiss for failure to state a claim is to test the legal sufficiency of a complaint so as to eliminate those actions "which are fatally flawed in their legal premises and designed to fail, thereby sparing litigants the burden of unnecessary pretrial and trial activity." Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001) (quoting Neitzke v. Williams, 490 U.S. 319, 326-27 (1989)).
In ruling on a motion to dismiss, a court must view the allegations of the complaint in thelight most favorable to the petitioner. Scheuer v. Rhodes, 416 U.S. 232 (1974); Kottschade v. City of Rochester, 319 F.3d 1038, 1040 (8th Cir. 2003).
Pursuant to Rule 56(c), a district court may grant a motion for summary judgment if all of the information before the court demonstrates that "there is no genuine issue as to material fact and the moving party is entitled to judgment as a matter of law." Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467 (1962). The burden is on the moving party. Mt. Pleasant, 838 F.2d at 273. After the moving party discharges this burden, the nonmoving party must do more than show that there is some doubt as to the facts. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the nonmoving party bears the burden of setting forth specific facts showing that there is sufficient evidence in its favor to allow a jury to return a verdict for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
In ruling on a motion for summary judgment, the court must review...
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