Bemba v. Holder

Decision Date11 March 2013
Docket NumberCase No. 4:11CV1859 JAR.
Citation930 F.Supp.2d 1022
PartiesBlood Live BEMBA, Plaintiff, v. Eric H. HOLDER, Attorney General of the United States, et al., Defendants.
CourtU.S. District Court — Eastern District of Missouri


Evita Tolu, Stientjes and Tolu, LLC, St. Louis, MO, for Plaintiff.

Aaron S. Goldsmith, U.S. Department of Justice, Washington, DC, Jane Rund, Office of U.S. Attorney, St. Louis, MO, for Defendants.


JOHN A. ROSS, District Judge.

This matter comes before the Court on Defendants' Motion to Dismiss Amended Complaint or, In the Alternative, Motion for Summary Judgment (ECF No. 33).1 This matter is fully briefed and ready for disposition.


Plaintiff Blood Live Bemba (“Bemba” or Plaintiff) is a native and citizen of The Republic of Congo (Defendants' Statement of Undisputed Facts (“DSUF”), ECF No. 36, ¶ 1). Plaintiff was granted asylum in the United States by the Chicago Asylum Office on October 30, 2003. (DSUF, ¶ 2). Plaintiff filed an I–485 Application for Adjustment of Status on April 23, 2007 with the Nebraska Service Center of the United States Citizen and Immigration Services (“USCIS”). (DSUF, ¶ 3). Asylees who have been physically present in the United States for at least one year after a grant of asylum may apply for adjustment of status to that of a lawful permanent resident by filing Form I–485 Application for Adjustment of Status at the appropriate USCIS Service Center. (Declaration of David Baggerly (“Baggerly Dec.”), ECF No. 35–3, ¶ 4); 8 U.S.C. § 1159(b).2

In the years since Plaintiff was granted asylum in 2003, Congress passed legislation, which significantly impacts requests for adjustment of status. (Baggerly Dec., ¶ 5). This legislation includes the REAL ID Act (May 11, 2005), which amended the inadmissibility provisions of the Immigration and Nationality Act (“INA”) § 212(a)(3)(B), specifically the definitions of terrorist activities and terrorist organizations, and the Consolidated Appropriations Act CAA of 2008 (“CAA”) (December 26, 2007), which amended the Secretary of Homeland Security's (“the Secretary”) authority to exempt certain terrorist-related inadmissibility grounds. (DSUF, ¶ 5).

Plaintiff indicated on his asylum application and in his affidavit in support of his application that he was a member of the Youth Section of the Congolese Movement for Democracy and Integral Development (MCDDI) beginning in 1995. (DSUF, ¶ 6; Baggerly Dec., ¶ 6). He stated that in 1996, he was elected secretary of the Diata Branch, and as the secretary, he recorded minutes of the group's meetings. (DSUF, ¶ 7). He further stated that, “in December 1998, ‘Ninjas,’ guerillas associated with the MCDDI, launched an attack on the capital, Brazzaville.” (DSUF, ¶ 8).

Plaintiff denies that he was ever a member of the MCDDI. Instead, he claims that at sixteen, he became a member of the Youth Section of the Congolese Movement for Democracy and Integral Development (Youth JMCDDI), a social organization for young people. (Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss or, In the Alternative, For Summary Judgment & In Support of Plaintiff's Motion for Summary Judgment (“Response”), ECF No. 24, p. 2). Plaintiff contends that he disassociated himself from Youth JMCDDI at age eighteen by burning his membership card. ( Id., pp. 2–3). Plaintiff denies ever joining the MCDDI, which is an adult group. ( Id., p. 3). Likewise, he denies ever participating in any terrorist activity. ( Id.).

Due to the activities of its armed wing, the Government contends that MCDDI meets the current definition of an undesignated terrorist organization, commonly referred to as a “Tier III” organization under 8 U.S.C. § 1182(a)(3)(B)(vi)(III). (DSUF, ¶¶ 9–11). Under 8 U.S.C. § 1182(a)(3)(B)(vi)(III), a Tier III terrorist organization is “a group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in” defined terrorist activities. Therefore, the Government contends that Plaintiff is inadmissible to the United States under INA § 212(a)(3)(B)(i)(I) for engaging in a terrorist activity as that term has been defined by Congress at INA § 212(a)(3)(B)(iii)(V). (DSUF, ¶ 12).

Under 8 U.S.C. § 1182(d)(3)(B)(i), the Secretary, in consultation with the Secretary of State and the Attorney General, and the Secretary of State, in consultation with the Secretary and the Attorney General, have the discretionary authority to exempt certain terrorist-related inadmissibility grounds. (DSUF, ¶ 13). In December 2007, the CAA amended the Secretary's and the Secretary of State's authority to exempt certain terrorist-related inadmissability grounds. (DSUF, ¶ 14). Specifically, the CAA expanded the discretionary authority of the Secretary and the Secretary of State to exempt certain undesignated or Tier III terrorist organizations from being considered terrorist organizations. ( Id.). None of the exercises of exemption authority issued to date would benefit Plaintiff. ( Id.).

On March 26, 2008, the Deputy Director of USCIS issued a memorandum providing guidance regarding adjudication of cases involving inadmissibility under 8 U.S.C. § 1182(a)(3)(B). (DSUF, ¶ 16). The memorandum instructed that adjudicators should withhold adjudication of cases that could benefit from the Secretary's amended discretionary authority under the CAA. ( Id.).

The Government asserts that the adjudication of Plaintiff's application is being withheld in accordance with agency policy. (SOF, ¶ 17; Baggerly Dec., ¶ 13). If the USCIS were ordered to complete the adjudication of Plaintiff's adjustment of status application today, his case would be denied without prejudice to allow Plaintiff to re-file. ( Id.).

Plaintiff filed this action on October 26, 2011. (ECF No. 1). On March 17, 2012, Plaintiff filed his Amended Complaint for Mandamus, Declaratory Relief and Injunction Under Administrative Procedure Act (hereinafter “Complaint” or “Compl.”; ECF No. 21) against Defendant Alejandro Mayorkas, the Director of the USCIS, Defendant Janet Napolitano, the Director of the Department of Homeland Security (DHS), Defendant Robert S. Mueller, the Director of the Federal Bureau of Investigation (FBI), and Chester Moyer, the Officer in Charge of the St. Louis Office of the USCIS.3 Plaintiff asserts that this Court has jurisdiction over this action under 28 U.S.C. § 1331, the federal question statute 4; 28 U.S.C. § 1361, the Mandamus and Venue Act of 1962 (“Mandamus Act) 5; and 5 U.S.C. § 702, the Administrative Procedures Act (“APA”), 5 U.S.C. § 702. Plaintiff alleges claims for Unlawful Withholding of Adjudication Under APA 5 U.S.C. § 555(b) and § 706 (Count I), Unreasonable Delay Under APA 5 U.S.C. § 555(b) and § 706 and the Mandamus Act 28 U.S.C. §§ 1361, et seq. (Count II), and Denial of Due Process of Law Under the Fifth Amendment to the Constitution of the United States—Deprivation of a Fair Hearing (Count III).

The Government moves to dismiss Plaintiff's claims pursuant to Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 12(b)(6) and move for summary judgment pursuant to Fed.R.Civ.P. 56(c).

A. Motion to Dismiss: Fed.R.Civ.P. 12(b)(1)

A motion to dismiss under Rule 12(b)(1) challenges whether the district court possesses subject matter jurisdiction to hear the case. Johnson v. United States, 534 F.3d 958, 964 (8th Cir.2008). As the party asserting subject matter jurisdiction, plaintiff bears the burden of establishing its existence. Ark. Blue Cross & Blue Shield v. Little Rock Cardiology Clinic, P.A., 551 F.3d 812, 816 (8th Cir.2009); Memic v. Holder, 4:10 CV 1692 DDN, 2011 WL 1361563, at *2 (E.D.Mo. Apr. 11, 2011).

A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure may challenge either the facial sufficiency or the factual truthfulness of the plaintiff's jurisdictional allegations. Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir.1993). When passing on a facial challenge, a court must presume that all of the plaintiff's jurisdictional allegations are true. Id. The motion must be granted if the plaintiff has failed to allege a necessary element supporting subject matter jurisdiction. Id. A court confronted with a factual challenge must weigh the conflicting evidence concerning jurisdiction, without presuming the truthfulness of the plaintiff's allegations. Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947); Osborn v. United States, 918 F.2d 724, 730 (8th Cir.1990).

In the motion to dismiss, the Government does not challenge the truthfulness of Plaintiff's claims. Rather, the Government contends that the basis upon which Plaintiff brings his Complaint fails to provide the Court with subject matter jurisdiction. That is, the Government challenges the Court's subject matter jurisdiction, thus the Court presumes the truthfulness of Plaintiff's jurisdictional allegations. See Tan v. Chertoff, 407CV236 HEA, 2007 WL 1880742, at *2 (E.D.Mo. June 29, 2007).

B. Motion to Dismiss: Fed.R.Civ.P. 12(b)(6)

In ruling on a motion to dismiss, the Court must view the allegations in the Complaint liberally in the light most favorable to Plaintiff. Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir.2008) (citing Luney v. SGS Auto. Servs., 432 F.3d 866, 867 (8th Cir.2005)). Additionally, the Court “must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party.” Coons v. Mineta, 410 F.3d 1036, 1039 (8th Cir.2005) (citation omitted). To survive a motion to dismiss, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (abrogating the “no set of facts” standard for Fed.R.Civ.P. 12(b)(6) found in Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). While a complaint...

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