Al Jabari v. Chertoff

• Decision Date: 15 January 2008
• Docket Number: Civil No. 07-2591 (PJS/JJG).
• Citation: 536 F.Supp.2d 1029
• Parties: Fahed Akram AL JABARI, Plaintiff, v. Michael CHERTOFF, Secretary, Department of Homeland Security; Robert Mueller, Director, Federal Bureau Of Investigation; Mark Cangemi, District Director, U.S. Immigration and Customs Enforcement; and Michael Mukasey, United States Attorney General, Defendants.
• Court: U.S. District Court — District of Minnesota

536 F.Supp.2d 1029

Fahed Akram AL JABARI, Plaintiff, v. Michael CHERTOFF, Secretary, Department of Homeland Security; Robert Mueller, Director, Federal Bureau Of Investigation; Mark Cangemi, District Director, U.S. Immigration and Customs Enforcement; and Michael Mukasey, United States Attorney General, Defendants.

Civil No. 07-2591 (PJS/JJG).

United States District Court, D. Minnesota.

January 15, 2008.

COPYRIGHT MATERIAL OMITTED

Marc Prokosch, Karam & Associates, Bloomington, MN, for plaintiff.

Robyn A. Millenacker, Assistant United States Attorney, United States Attorney's Office, Minneapolis, MN, for defendants.

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS OR FOR SUMMARY JUDGMENT

PATRICK J. SCHILTZ, District Judge.

Plaintiff Fahed Al Jabari is attempting to become a legal permanent resident of the United States. Before Al Jabari can be granted such status, the federal government must complete certain security checks on him. Al Jabari waited about eighteen months for defendants to complete those security checks and then, losing patience, he brought this action to compel defendants to finish their work. This matter is before the Court on defendants'¹ motion to dismiss or for summary judgment. For the reasons set forth below, the Court grants the motion with respect to Al Jabari's claim under the Mandamus Act, 28 U.S.C. § 1361, and with respect to all claims against FBI Director Robert Mueller, The Court denies the motion in all other respects.

I. BACKGROUND

Al Jabari, a citizen of Jordan, first entered the United States in 1993 as a nonimmigrant student. Al Jabari later married a citizen of the United States while in Jordan and, following his marriage, returned to the United States as a conditional, permanent resident in June 1999. Administrative Record ("AR") 1 [Docket No. 14]. Conditional permanent residency is the status granted to an alien who is married to a United States citizen, but whose marriage is less than two years old. See 8 U.S.C. § 1186a(a)(1), (g)(1).² If the alien is to remain in the United States indefinitely, the alien and his citizen-spouse must jointly petition to remove the conditional basis of the alien's permanent residency within a certain time period. § 1186a(c)(1), (d)(2). If no such petition is timely filed, the alien's permanent residency is terminated, and the alien is usually removed from the United States. § 1186a(c)(2). The Attorney General, however, has the discretion to grant a "hardship waiver" of the joint-petition requirement under various circumstances, including if the alien demonstrates that his removal, from the United States would cause "extreme hardship." § 1186a(c)(4).

Al Jabari and his wife became estranged shortly after they were married. They did not file a joint petition under § 1186a(c)(1) — presumably because Al Jabari's wife was unwilling to join such a request — and their marriage ultimately ended in divorce in February 2002. Meanwhile, in June 2001, Al Jabari asked the Attorney General to grant him a hardship waiver of the joint-petition requirement. AR 7, 208-211. After reviewing the materials Al Jabari submitted with his request, United States Citizenship and Immigration Services ("USCIS") concluded that Al Jabari's marriage was a sham — a marriage that Al Jabari entered solely to obtain permanent residency in the United States. AR 210. In September 2004, USCIS denied Al Jabari's § 1186a(c)(4) petition for a hardship waiver, terminated his permanent residency, and began removal proceedings against him. AR 3, 7. In the removal proceedings, Al Jabari renewed his hardship petition and requested review of the termination of his permanent residency in accordance with § 1186a(b)(2). Third Millenacker Decl. Ex. CC [Docket No. 21].

The evidentiary record on Al Jabari's renewed hardship petition closed in April 2006. Third Millenacker Decl. Ex. CC. The Immigration Judge ("IJ") has not yet issued a decision, however, because federal regulations preclude the lifting of conditions on permanent residency before required security checks are completed. 8 C.F.R. § 1003.47(b)(4), (g). Although the briefing is not entirely clear, it appears that the only remaining security check to be completed on Al Jabari is a "name check."

A name check is a multi-step process in which the FBI searches its files for information linked to a particular name and other associated identification information, such as birthdate or social security number. Cannon Decl. ¶¶ 11, 13, 21 [Docket No. 9]. If any unfavorable information is found, the FBI forwards a summary of the information to USCIS. Cannon Decl. ¶ 17. The vast majority of name checks that the FBI conducts for USCIS yield no information at all; less than one percent of name checks retrieve possible unfavorable information. Cannon Decl. ¶¶ 13-14, 17.

Generally, the FBI processes name checks in the order in which requests are received, but USCIS can direct that a particular name check be expedited, in which case it is moved to the front of the queue. Cannon Decl. ¶ 18. The FBI has no statutory duty to conduct name checks for USCIS, but instead does so pursuant to a contract with the agency. See Konchitsky v. Chertoff, No. 07-294, 2007 WL 2070325, at *5-6 (N.D.Cal. July 13, 2007). USCIS submitted a name-check request for Al Jabari on January 10, 2006 — more than two years, ago. Cannon Decl. ¶ 39. The FBI has yet to complete the check. Cannon Decl. ¶ 39.

Frustrated with the wait, and believing that the IJ will grant his petition as soon as the name check is completed, Al Jabari initiated this action in June 2007 seeking to compel the completion of his security check.³ Al Jabari argues that he is entitled to relief under the Mandamus Act, 28 U.S.C. § 1361, and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551 et seq. Defendants move to dismiss or for summary judgment, arguing that the Court lacks jurisdiction over Al Jabari's claims and, on the merits, arguing that the delay in completing his security check is reasonable.⁴

II. ANALYSIS

A. Mandamus Act

The Mandamus Act provides that "[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff?' 28 U.S.C. § 1361. The Act does not itself waive sovereign immunity. Essex v. Vinal, 499 F.2d 226, 231-32 (8th Cir.1974). But under what is known as the Larson-Dugan exception to sovereign immunity, see Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949); Dugan v. Rank 372 U.S. 609, 621-22, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963), no waiver of sovereign immunity is necessary when "a plaintiff seeks a writ of mandamus to force a public official to perform a duty imposed upon him in his official capacity...." Wash. Legal Found. v. U.S. Sentencing Comm'n, 89 F.3d 897, 901 (D.C.Cir.1996). The rationale of the Larson-Dugan exception to sovereign immunity was described by the. Supreme Court as follows:

There may be, of coarse, suits for specific relief against officers of the sovereign which are not suits against the sovereign. ... [W]here the officer's powers are limited by statute, his actions beyond those limitations are considered individual and not sovereign actions. The officer is not doing the business which the sovereign has empowered him to do or he is doing it in a way which the sovereign has forbidden. His actions are ultra vires his authority and therefore may be made the object of specific relief.

Larson, 337 U.S. at 689, 69 S.Ct. 1457.

For mandamus to issue under 28 U.S.C. § 1361, the plaintiff must have a clear and indisputable right to the relief sought, the defendant must have a nondiscretionary duty to honor that right, and the plaintiff must have no other adequate remedy. Castillo v. Ridge, 445 F.3d 1057, 1060-61 (8th Cir.2006). Al Jabari alleges that he has a clear and indisputable right to a prompt security check — and that DHS has a non-discretionary duty to provide a prompt security check — under 8 C.F.R. § 1003.47(e). That regulation provides:

DHS shall endeavor to initiate all relevant identity, law enforcement, or security investigations or examinations concerning the alien or beneficiaries promptly, to complete those investigations or examinations as promptly as is practicable (considering, among other things, increased demands placed upon such investigations), and to advise the immigration judge of the results in a timely manner, on or before the date of a scheduled hearing on any application for immigration relief filed in the proceedings.

The Court agrees with Al Jabari that, under § 1003.47(e), DHS has a nondiscretionary duty to initiate and complete a security check, Thus, if DHS had refused to conduct any security check on Al Jabari, he would be entitled to relief under the Mandamus Act.⁵ But the Court cannot agree with Al Jabari that § 1003.47(e) imposes on DHS a non-discretionary duty to complete a prompt security check. The regulation merely requires DHS to "endeavor ... to complete those investigations or examinations as promptly as is practicable (considering, among other things, increased demands placed upon such investigations)...." This is not the language of prescription, but of aspiration.

If the regulation said something like "DHS shall complete all relevant security investigations concerning the alien within 120 days," then the regulation would impose a non-discretionary duty on DHS. But the regulation instead directs DHS to "endeavor" — that is, to try — to complete the security check "as promptly as is practicable." This standard, unlike "within 120 days," is both vague (what is "promptly"?) and inevitably requires the exercise of judgment (how much promptness is "practicable"?). As if to emphasize the discretionary nature of the duty, the regulation goes on to point out that multiple factors will inform the DHS's...