Jafarzadeh v. Duke

• Decision Date: 07 September 2017
• Docket Number: Civil Action No. 16–1385 (JDB)
• Citation: 270 F.Supp.3d 296
• Parties: Razeyeh JAFARZADEH & Manouchehr Jafarzadeh, Plaintiffs, v. Elaine DUKE, Acting Secretary, U.S. Department of Homeland Security, et al., Defendants.
• Court: U.S. District Court — District of Columbia

270 F.Supp.3d 296

Razeyeh JAFARZADEH & Manouchehr Jafarzadeh, Plaintiffs,

v.Elaine DUKE, Acting Secretary, U.S. Department of Homeland Security, et al.¹ , Defendants.

Civil Action No. 16–1385 (JDB)

United States District Court, District of Columbia.

Signed September 7, 2017

Ladan Mirbagheri–Smith, Mirbagheri & Smith LLP, Rockville, MD, Charles Davidson Swift, Constitutional Law Center for Muslims in America, Richardson, TX, for Plaintiffs.

Lauren Crowell Bingham, U.S. Department of Justice, Wynne Patrick Kelly, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

JOHN D. BATES, United States District Judge

Plaintiff Manouchehr Jafarzadeh is a non-citizen who is lawfully present in the United States and who applied for an adjustment of status to become a lawful permanent resident. His U.S. citizen daughter, Razeyeh Jafarzadeh, filed the corresponding application for Manouchehr to become a lawful permanent resident as an immediate relative of a U.S. citizen. The United States Citizenship and Immigration Service (USCIS), the agency within the Department of Homeland Security (DHS) that adjudicates these applications, granted her application but denied his. Although he may only challenge the ultimate determination of his application through administrative proceedings and then an appeal to the circuit court, he instead seeks to challenge the process by which USCIS adjudicated his initial application through a suit in this Court. He alleges that USCIS employs a procedure for reviewing certain applications known as the "Controlled Application Review and Resolution Program," and that USCIS's use of this process without promulgating a notice-and-comment rule violates the Administrative Procedure Act and his right to procedural due process under the Fifth Amendment. DHS, on the other hand, maintains that because USCIS has already made a determination and now an immigration judge will make a new determination on his application through the administrative process, the claims against USCIS are either moot or unripe. DHS further argues that even if Manouchehr's claims are not moot or unripe, they must be dismissed because he has failed to state a claim under the Immigration and Nationality Act, the Administrative Procedure Act, or the Constitution. For the reasons explained below, the Court will grant in part and deny in part the motion to dismiss.

BACKGROUND

The facts that follow are as stated in plaintiffs' complaint, which at this stage, the Court accepts as true. Plaintiff Manouchehr is a citizen of Iran who has lawfully resided in the United States since 1979. Compl. [ECF No. 1] ¶ 16. His daughter, plaintiff Razeyeh, is a U.S. citizen. Id. ¶ 1. In January 2010, plaintiffs respectively filed the appropriate forms for Manouchehr to adjust his status to that of a lawful permanent resident: Razeyeh filed a Petition for Alien Relative (Form I–130) and Manouchehr filed a concurrent Application to Register Permanent Residence or Adjust Status (Form I–485). Id. ¶¶ 1, 7, 19.

Since these applications were filed, USCIS has twice interviewed Manouchehr, once in 2011 and once in 2014. Id. ¶ 19. He has also been contacted by the Federal Bureau of Investigation "multiple times," most recently in 2014. Id. The FBI has, allegedly, conveyed that if Manouchehr became an informant on the Iranian community in the United States, "the FBI would use its influence to remove roadblocks hindering the adjudication of his applications" to become a lawful permanent resident. Id. ¶¶ 19–22. Manouchehr has consistently declined to act as an informant for the FBI. Id. ¶ 22.

For six years after plaintiffs had submitted their applications, but before they filed this lawsuit, USCIS neither approved nor denied the applications. Plaintiffs allege that this is because their applications were subject to a secret, alternate process for adjudicating applications from certain immigrants, known as the Controlled Application Review and Resolution Program (CARRP). Plaintiffs allege that "in April 2008, USCIS created CARRP, an agency-wide policy for identifying, processing, and adjudicating applications for certain immigration benefits" in secret, and it only "[came] to light as a result of" documents released pursuant to Freedom of Information Act requests. Id. ¶ 25. They allege that "once an application is selected for processing under CARRP, USCIS removes the application from the agency's routine adjudication track and places it on a separate CARRP track." Id. ¶ 29. The applications on this separate track "are reviewed under protocols that lack any authority or foundation in statute or regulation" and "CARRP mandates denial or perpetual delay" of those applications, "regardless of the applicant's statutory eligibility for a particular immigration benefit." Id.

Plaintiffs further contend that applications are selected for inclusion in CARRP based on whether the applicant is a "known or suspected terrorist," which in turn is based on whether the individual is listed in the "Terrorism Screening Database" or has a "link to ... an activity, individual or organization that has engaged in terrorist activity or been a member of a terrorist organization." Id. ¶¶ 26–29 (internal quotation marks omitted). The "Terrorism Screening Database" is, according to plaintiffs, maintained by the FBI, and that agency (as well as other intelligence agencies) is authorized to add individuals to the database. Id. ¶ 32. Pursuant to CARRP, once an individual is included in the Terrorism Screening Database, USCIS field officers are prohibited from granting that immigration application, "even if the applicant has satisfied all statutory and regulatory criteria." Id. ¶ 33. Thus, plaintiffs argue, although the immigration laws grant the Secretary of Homeland Security the authority to adjudicate immigration applications, CARRP unlawfully delegates that authority to the FBI and to other agencies that add individuals to the Terrorism Screening Database. Further, plaintiffs allege that CARRP requires USCIS to deny applications on national-security related grounds that are far broader than the ones articulated in the governing statute. Id. ¶ 41 (citing 8 U.S.C. § 1182(a)(3) ).

In June 2016, more than six years after plaintiffs filed their applications with DHS, they filed this action. (The suit names several government officials as defendants. For simplicity, the Court will refer to the defendants as DHS, USCIS, or the government.) The suit, styled as one for mandamus relief, seeks an order under the Immigration and Nationality Act (INA) and the Administrative Procedure Act (APA) requiring USCIS to adjudicate the applications after six years of delay (Counts I, II, and III). See id. ¶¶ 42–52. It also asserts that CARRP's delegation of immigration decisions to other agencies besides USCIS violates the INA, and therefore seeks adjudication of the applications without the application of CARRP (Count II). Id. ¶¶ 47–50. It further alleges that DHS's refusal to notify Manouchehr that his application was subject to CARRP violates his procedural due process rights under the Fifth Amendment (Count IV).Id. ¶¶ 53–55. Finally, the suit contends that CARRP is a "rule" and therefore must be promulgated in accordance with the APA's notice-and-comment requirements under 5 U.S.C. § 553 (Count V), and the application of CARRP to Manouchehr is arbitrary and capricious under 5 U.S.C. § 706 (Count III).

On December 2, 2016 USCIS granted Razeyeh's petition, thereby recognizing Manouchehr as her immediate relative. See Collett Decl. [ECF No. 12–1] ¶ 3; Pls.' 1st Supp. Br. [ECF No. 21] at 1. But on February 10, 2017, USCIS denied Manouchehr's application for adjustment of status. See Collett Decl. ¶ 4; Pls.' Opp'n [ECF No. 15] at 7. The government argues that because plaintiffs seek an order requiring USCIS to act on their applications, their complaint is now moot. See Defs.' Mot. to Dismiss [ECF No. 12] at 7–8. DHS also asserts that the ultimate relief that plaintiffs seek is not a particular procedure, but rather a different ruling on Manouchehr's application. This relief, DHS argues, can only be obtained through the administrative process before an immigration judge and the Board of Immigration Appeals, followed by appeal to the appropriate circuit court, and thus the claims are also unripe. See Defs.' Reply Br. [ECF No. 17] at 5–8 & n.1. DHS also contends that plaintiffs have failed to state a claim under the INA because that act "does not create a private right of action to challenge the length of time or process USCIS takes to adjudicate I–130 and I–485 petitions." Defs.' Mot. to Dismiss at 8. Moreover, because CARRP is not a final agency action as defined by 5 U.S.C. § 704, plaintiffs have failed to state a claim under the APA. See id. at 10 (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) ). And, finally, the government asserts that plaintiffs here failed to state a due process claim because Manouchehr cannot identify any constitutionally protected property or liberty interest in his adjustment of status application. Id. at 12.

After the motion to dismiss was fully briefed, the Court ordered the parties to file supplemental memoranda to provide additional information and legal arguments. See Order, July 21, 2017 [ECF No. 18]. Plaintiffs' supplemental brief confirms that Razeyeh does not request any further action with respect to her application but instead asserts that she is injured by USCIS's unlawful procedures in adjudicating Manouchehr's application. Pls.' 1st Supp. Br. at 1–2. It also confirms that removal proceedings are currently pending against Manouchehr before an immigration judge, and therefore asks that James McHenry, Acting Director of the Department of Justice's Executive Office of Immigration Review (the office responsible for immigration judges and the Board of Immigration Appeals), be added as a defendant....