Irshad v. Napolitano

Decision Date02 October 2012
Docket Number8:12CV173
CourtU.S. District Court — District of Nebraska
PartiesJAMSHID IRSHAD, Plaintiff, v. JANET NAPOLITANO, Secretary of the Department of Homeland Security, ERIC H. HOLDER JR., Attorney General of the United States, ROBERT S. MUELLER, Director of the Federal Bureau of Investigation, MICHAEL AYTES, Acting Deputy Director of the United States Citizenship & Immigration Services, and F. GERARD HEINAUER, Director of the Nebraska Service Center, Defendants.
MEMORANDUM AND ORDER ON

DEFENDANTS' MOTION TO DISMISS

OR, IN THE ALTERNATIVE, MOTION

FOR SUMMARY JUDGMENT

On May 16, 2012, the plaintiff, Jamshid Irshad, filed a four-count complaint against the defendants, Janet Napolitano, Secretary of the Department of Homeland Security; Eric H. Holder, Jr., Attorney General of the United States; Robert S. Mueller, Director of the Federal Bureau of Investigation; Michael Aytes, Acting Deputy Director of the United States Citizenship and Immigration Services (USCIS); and F. Gerard Heinauer, Director of the USCIS Nebraska Service Center. (See Compl., ECF No. 1.) Now before me is the defendants' motion to dismiss the complaint or, in the alternative, motion for summary judgment. (ECF No. 8.) For the following reasons, I shall deny the defendants' motion to dismiss the complaint, but I shall grant the defendants' motion for summary judgment.

I. BACKGROUND

The complaint alleges as follows.1 Janet Napolitano, who is sued in her official capacity as the Secretary of the Department of Homeland Security (DHS), is responsible for "administering USCIS and implementing and enforcing the Immigration and Nationality Act." (Compl. at 4, ECF No. 1.) She has "ultimate decision-making authority" over the USCIS's adjudication of applications for adjustment of immigration status, including the I-485 application at issue in this case. (Id. (citing 8 U.S.C. § 1103; 8 C.F.R. § 2.1).)

Eric H. Holder is sued in his official capacity as Attorney General of the United States. (Id. at 4.) He "has the authority to adjudicate pending I-485 applications." (Id. (citing 8 U.S.C. § 1103(g)).)

Robert S. Mueller, who is sued in his official capacity as Director of the Federal Bureau of Investigation (FBI), is responsible for ensuring that the FBI properly completes security clearances for other U.S. government agencies. (Id. at 4.)

Michael Aytes, who is sued in his official capacity as Acting Deputy Director of USCIS, "has been delegated ultimate decision-making authority" over the adjudication of the I-485 application at issue in this case. (Id. at 4.)

F. Gerard Heinauer is sued in his official capacity as the Director of the USCIS Nebraska Service Center, and he is "generally charged with supervisory authority over all operations of the USCIS within his district." (Id. at 5.) Heinauer supervises the office where the I-485 application that is at issue in this case remains pending. (Id.)

Jamshid Irshad was born in Afghanistan in 1972. (Id. at 2, 6.) After the Soviet Union invaded Afghanistan in 1979, members of Irshad's immediate family supported the National Islamic Front of Afghanistan (NIFA), which was one of many Afghan resistance groups that opposed the Soviet-backed forces. (Id. at 2, 6.) These resistence groups, known collectively as the "Mujahidin," were "supported and funded by the United States." (Id. at 2; see also id. at 7 ("During the years 1983 to 1988 the U.S. government provided support to NIFA and other Afghan Mujahidin groups in amounts that rose from $30 million in 1980 to more than $600 million per year during the years 1986 to 1989.").) "In other words, Irshad's family fought on the side of the United States in a Cold War conflict against the Soviet Union." (Id. at 2.) Though Irshad was a child at the time of the Soviet invasion, he aided the resistence effort "by carrying supplies for the Mujahidin and giving tours to American and British journalists who visited Afghanistan." (Id.) These circumstances eventually placed Irshad's life in great danger,2 and his family decided that Irshad should seek asylum in the United States. (Id. at 2, 8.) Thus, in 1988, Irshad fled to the United States "as an unaccompanied minor." (Id. at 8.)

Irshad applied for asylum shortly after his arrival in the United States, but "[d]ue to extreme delay on the part of the Immigration and Naturalization Service ("INS") and the immigration court in processing his application," his case was not heard for nearly a decade. (Id. at 2, 8.) On February 25, 1998, Irshad was granted asylum. (Id. at 2, 8.)

One year after being granted asylum, Irshad became eligible to apply for an adjustment of status to "lawful permanent resident." (Id. at 8 (citing 8 U.S.C. § 1159(b)).) On March 22, 1999, Irshad filed an Application for Adjustment of Status, Form I-485 (the I-485 application) with the USCIS. (Id.) Irshad's I-485 application was not considered for almost nine years. (Id. at 8.) Then on February 15, 2008, the USCIS Nebraska Service Center denied Irshad's application without a hearing on the ground that "his transporting of supplies for the Mujahidin as a child constituted material support of an 'undesignated terrorist organization.'" (Id. at 2-3, 8.)

On March 17, 2008, Irshad filed an I-290B Notice of Appeal with the USCIS, and on April 29, 2008, the USCIS reopened Irshad's I-485 application sua sponte. (Id. at 9.) Since that time, no action has been taken on Irshad's application. (E.g., id.) Irshad has filed requests for updates on thestatus of his application, and on January 24, 2012, the USCIS sent him a letter stating that "we are holding adjudication in abeyance while the Department of Homeland Security considers additional exercises of the Secretary of Homeland Security['s] discretionary exemption authority [which] might allow us to approve your case." (Id. (second alteration in original).)

On May 16, 2012, Irshad filed the instant complaint against the defendants. (See generally Compl., ECF No. 1.) Count I states that Irshad is entitled to "mandamus relief from this Court under 28 U.S.C. § 1361," and that I should "compel the Defendants to issue a final ruling on his I-485 Application." (Id. at 11.) In support of Count I, Irshad alleges that the defendants "have a non-discretionary, mandatory duty to act on Irshad's I-485 Application" within a reasonable time; that the defendants have violated this duty by failing to act on the application; and that the defendants' failure to act has prejudiced Irshad in the following ways: 1) he "cannot travel outside the United States without obtaining special travel authorization or jeopardizing his ability to re-enter the United States," 2) he was required to apply for expedited processing of a travel document, at a cost of $220, in order to renew his driver's license in a timely fashion, and 3) his ability to seek United States citizenship has been impaired. (See id. at 10-11 (citing, inter alia, 8 C.F.R. § 245.2(a); 5 U.S.C. § 555(b); 8 U.S.C. § 1427(a)).) In Count II, Irshad alleges that the defendants violated the Administrative Procedure Act (APA) by failing to process Irshad's I-485 application "within a reasonable time," and therefore they should be compelled to issue a final ruling on the application. (Id. at 11 (quoting 5 U.S.C. § 555(b)).) In Count III, Irshad seeks a declaration that the defendants' "policies, practices, and customs, which deprive Irshad of his right to a timely adjudication of his duly filed I-485 application, violate the United States Constitution, the Immigration and Nationality Act[,] and the Administrative Procedure[] Act." (Id. at 12.) Count IV alleges that Irshad will seek attorney's fees and costs under the Equal Access to Justice Act, 28 U.S.C. § 2412, if he prevails in this case. (Id.)

II. STANDARD OF REVIEW
A. Rule 12(b)(1)

A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) may challenge either the factual truthfulness or the facial sufficiency of the plaintiff's jurisdictional allegations. See,e.g., Stalley v. Catholic Health Initiatives, 509 F.3d 517, 520-21 (8th Cir. 2007) (citing Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990)). In a facial attack, the standard of review is the same standard that applies to motions brought pursuant to Federal Rule of Civil Procedure 12(b)(6): I must "accept as true all factual allegations in the complaint, giving no effect to conclusory allegations of law," and I must determine whether the plaintiff has asserted "facts that affirmatively and plausibly suggest that the pleader has the right he claims (here, the right to jurisdiction), rather than facts that are merely consistent with such a right." Stalley, 509 F.3d at 521 (citing, inter alia, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007)). (See also infra Part II.B.) In contrast, "[w]hen a district court engages in a factual review, it inquires into and resolves factual disputes." Faibisch, 304 F.3d at 801. See also Titus v. Sullivan, 4 F.3d 590, 593 & n.1 (8th Cir. 1993). In this case, although the defendants have submitted evidence outside the pleadings for my consideration, their attack upon Irshad's jurisdictional allegations is facial, (see Defs.' Br. at 7-9, ECF No. 9), and their motion to dismiss will be analyzed accordingly.

B. Rule 12(b)(6)

"Federal Rule of Civil Procedure 8 requires that a complaint present 'a short and plain statement of the claim showing that the pleader is entitled to relief.'" Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009). To survive a motion to dismiss under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Id. (quoting Twombly, 550 U.S. at 555)....

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