Hosseini v. Napolitano
| Decision Date | 03 April 2014 |
| Docket Number | Civil Action No. 5:13–82–JMH. |
| Citation | 12 F.Supp.3d 1027 |
| Parties | Mehrdad HOSSEINI, Plaintiff, v. Janet NAPOLITANO, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Kentucky |
Mehrdad Hosseini, Lexington, KY, pro se.
Anna R. Gwinn, U.S. Attorney's Office, EDKY, Lexington, KY, J. Max Weintraub, U.S. Department of Justice, Washington, DC, for Defendants.
This matter is before the Court on the motion of the defendants, Acting Secretary of the Department of Homeland Security (“DHS”) Rand Beers, Director of United States Citizenship and Immigration Services (“USCIS”) Alejandro Mayorkas, and Director of the USCIS Nebraska Service Center Mark J. Hazuda, to dismiss the complaint, or in the alternative for summary judgment [R. 14], as well as plaintiff Mehrdad Hosseini's cross-motion for summary judgment. [R. 21] Both parties have filed responses in opposition. [R. 20, 22] These matters are therefore ripe for decision.
Mehrdad Hosseini is a resident of Lexington, Kentucky. Proceeding without counsel, on March 26, 2013, Hosseini filed a complaint seeking declaratory and injunctive relief compelling the defendants to adjudicate the Form I–485 Application to Register Permanent Residence or Adjust Status he filed on April 19, 2001. [R. 1] In his complaint, Hosseini contends that the 12–year delay in deciding his application is unreasonable. Specifically, he indicates that the Administrative Procedure Act, 5 U.S.C. § 551 et seq., requires federal agencies to decide matters before them within a reasonable time, 5 U.S.C. § 555(b), and allows a court to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). [R. 1, p. 1] He further contends that pertinent provisions of the Immigration and Nationality Act provide that I–485 applications “should be completed no later than 180 days after the initial filing of the application,” 8 U.S.C. § 1571(b), and seeks mandamus relief under 28 U.S.C. § 1361 to compel USCIS to decide his application.
In their motion, the defendants indicate that Hosseini is a native and citizen of Iran. On May 6, 1999, Hosseini's wife Nasrin Abdolrahmani was granted asylum in the United States. Abdolrahmani filed an I–730 petition seeking asylum on Hosseini's behalf as her spouse. USCIS approved that application, and on February 5, 2000, Hosseini was admitted as a derivative asylee. [R. 14–1, Canaan Decl. at ¶ 3]
An asylee who has been physically present in the United States for at least one year and is otherwise admissible is eligible for permanent resident status. 8 U.S.C. § 1159(b). On April 19, 2001, Hosseini filed an I–485 application seeking adjustment of his status to that of a lawful permanent resident. The USCIS Nebraska Service Center made an initial request for evidence on July 14, 2005, and a second request on December 3, 2007. Hosseini's application has remained pending since his February 22, 2008, response. Id. at ¶ 5.
If an applicant's status is adjusted to that of lawful permanent resident, they are issued a “green card.” Id. However, an asylee may not be issued a green card if they face a statutory bar to adjustment of status under 8 U.S.C. § 1182. The defendants indicate that their failure to decide Hosseini's application is not due to general administrative delay, but because he faces such a statutory bar to adjustment. Id. at ¶ 11.
Specifically, Hosseini's file indicates that while he was a teenager living in Iran, he distributed literature provided by Mojahedin–e–Khalq (the “MEK”) and the Fadaian–e–Khalq (the “FEK”). Before the Shah was deposed in Iran's 1979 revolution, MEK members killed United States soldiers and American civilian defense contractors. After the revolution, MEK's Islamist and Marxist ideology conflicted with that of the Ayatollah Khomeini's government, and a series of bombings, mortar attacks and assassinations directed against the Khomeini regime are attributed to the group. For its part, FEK operated a training camp and guerilla base in Tehran University and “engaged in small scale, insurgent-style attacks in urban settings” against the regime. In her I–730 petition, Abdolrahmani stated that she insisted that Hosseini terminate his involvement with these organizations in 1984 as a precondition to their marriage. Id. at ¶¶ 12–15.
USCIS has concluded that MEK and FEK engaged in “terrorist activity” within the meaning of 8 U.S.C. § 1182(a)(3)(B)(iii)(V)(b) by “[using] any ... explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.” Accordingly, it has determined that MEK and FEK constitute undesignated (or “Tier III”) terrorist organizations pursuant to 8 U.S.C. § 1182(a)(3)(B)(vi)(III). Id. at ¶ 16. USCIS has further concluded that Hosseini “engage[d] in terrorist activity” within the meaning of 8 U.S.C. § 1182(a)(3)(B)(iv) because his distribution of literature constituted “afford [ing] material support” to a terrorist organization under subsection (VI) of that section, thus rendering him inadmissible pursuant to 8 U.S.C. § 1182(a)(3)(B)(i)(I). Id. at ¶ 17.1
Nonetheless, the defendants indicate that rather than simply denying Hosseini's application outright because he is inadmissible, pursuant to agency policy USCIS has placed his application, and many others by applicants similarly situated, on adjudicatory hold. [R. 14–1, Canaan Decl. at ¶¶ 21–23] The purpose for doing so is to permit the DHS Secretary to exercise his discretionary authority under 8 U.S.C. § 1182(d)(3)(B)(i), created as a result of congressional amendments in December 2007, to exempt organizations from being considered Tier III terrorist organizations or to exempt applicants from the subsection (a)(3)(B) inadmissibility bars. [R. 14, p. 9–10]
The defendants further indicate that USCIS is at present actively considering whether FEK may be exempted pursuant to the Secretary's August 10, 2012, exercise of her discretionary authority. However, USCIS has already determined that MEK does not qualify for the exemption. [R. 14–1, Canaan Decl. at ¶¶ 27–29] Should USCIS deny Hosseini's application on inadmissibility grounds, it would not prejudice his right to re-file his application at a later date. Id. at ¶ 30.
The defendants present three arguments in support of their motion to dismiss the complaint. First, they contend that the Court must dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) because 8 U.S.C. § 1252(a)(2)(B)(ii) deprives the Court of subject matter jurisdiction over Hosseini's claims. [R. 14, pp. 11–13] Second, they argue that their placement of his application on adjudicatory hold was a discretionary choice which is not addressable by mandamus, and that Hosseini has not shown any prejudice resulting from USCIS's failure to decide his application as required to obtain relief under the APA. [R. 14, pp. 14–16] Third, the defendants assert that they are entitled to summary judgment on Hosseini's APA claim because they have not unreasonably delayed in deciding his I–485 application for more than twelve years. [R. 14, pp. 16–24] For his part, Hosseini addresses the defendants' jurisdictional arguments in his response [R. 20, pp. 2–4], and counters that he is entitled to summary judgment because the delay in adjudicating his I–485 application is unreasonable as a matter of law. [R. 21, pp. 2–3]
Since the 2007 congressional amendments and USCIS's decision to place I–485 applications potentially subject to a subsection (a)(3)(B) inadmissibility bar on adjudicatory hold, USCIS has faced numerous lawsuits filed by applicants similarly situated to Hosseini. In response, USCIS has presented the same or similar set of arguments to district courts throughout the country, with divergent results. The Court has canvassed that authority, and finds that the decisions concluding that USCIS's positions are unsustainable are better reasoned, and that Hosseini is therefore entitled to relief.
The defendants first argue that 8 U.S.C. § 1252(a)(2)(B)(ii) deprives the Court of subject matter jurisdiction over Hosseini's claims because “[t]he pace of USCIS's decisions over how and when to proceed with adjudicating asylee adjustment of status applications is discretionary” for purposes of that section. 8 U.S.C. § 1252(a)(2)(B)(ii) divests federal courts of jurisdiction to review any “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.”
(emphasis added). Because 8 U.S.C. § 1159(b) does not expressly state a specific time frame within which USCIS must adjudicate applications for adjustment, defendants contend that it is a matter of discretion, and thus unreviewable in this Court. [R. 14, p. 11–13]
Some courts have accepted USCIS's argument, concluding that § 1159(b)'s grant of discretion to the Secretary to determine whether to substantively grant or deny a I–485 application impliedly grants discretion to determine the pace at which applications are decided, including a decision not to decide the application at all. Cf. Seydi v. U.S. Citizenship and Immigration Services, 779 F.Supp.2d 714, 718 (E.D.Mich.2011) (citing Singh v. Napolitano, 710 F.Supp.2d 123, 130–31 (D.D.C.2010) ); Alghadbawi v. Napolitano, No. 1:10–cv–1330–TWP, 2011 WL 4390084 (S.D.Ind. Sept. 19, 2011). Others have rejected it, concluding that because the INA does not specify that USCIS has discretion whether or not to issue a substantive decision on an I–485 application, it does not fall within § 1252(a)(2)(B)(ii)'s jurisdictional divestiture for USCIS decisions “the authority for which is specified under this subchapter to be in the discretion” of the Secretary. Cf. Liu...
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