Jafarzadeh v. Nielsen

• Decision Date: 06 August 2018
• Docket Number: Civil Action No. 16-1385 (JDB)
• Parties: Manouchehr JAFARZADEH & Shahnaz Karami, Plaintiffs, v. Kirstjen NIELSEN, Secretary, U.S. Department of Homeland Security, et al., Defendants.
• Court: U.S. District Court — District of Columbia

321 F.Supp.3d 19

Manouchehr JAFARZADEH & Shahnaz Karami, Plaintiffs,

v.Kirstjen NIELSEN, 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 August 6, 2018

Ladan Mirbagheri-Smith, Mirbagheri & Smith LLP, Rockville, MD, Charles Davidson Swift, 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

All that is old in this case has been made new again. Manouchehr Jafarzadeh, an Iranian national seeking to become a lawful permanent resident ("LPR") of the United States, alleges that his application was placed in a government program that delays and denies immigration petitions on overly broad national security grounds. The government filed a motion to dismiss the first complaint in this matter, arguing, among other things, that the issues in the case must be adjudicated in removal proceedings, to which the government had already consigned Jafarzadeh. The Court granted the motion as to some aspects of the complaint, but rejected the idea that the Court lacked jurisdiction and denied the motion as to most of the claims raised. That complaint has since been amended, but the new version includes many of the same allegations and causes of action as the original. And the government has responded in kind, with another motion to dismiss that raises many—but not all—of the same arguments it raised the first time around. As before, the Court finds that it has jurisdiction, and that some—but not all—claims can proceed.

BACKGROUND

Jafarzadeh is an Iranian citizen who has lived legally and continuously in the United States since he entered the country on a student visa in 1979. See Am. Compl. [ECF No. 30] ¶ 8. He has been married since 1982 to plaintiff Shahnaz Karami, an Iranian citizen and American LPR who has continuously resided in the United States since 1978. Id. ¶¶ 7, 9. Plaintiffs have three adult daughters, all of whom are American citizens and reside in the United States. Id. ¶ 9. Jafarzadeh worked for the Interests Section of the Islamic Republic of Iran, which is housed in the Pakistani Embassy in Washington, D.C., from June 1991 until he was denied LPR status in 2017. Id. ¶ 20.

On January 25, 2010, plaintiffs' daughter Razeyeh filed a Form I-130 Petition for Alien Relative on behalf of Jafarzadeh, and Jafarzadeh concurrently filed a Form I-485 Application to Register Permanent Residence or Adjust Status as her immediate relative. Id. ¶¶ 1, 21. Both petitions remained pending at the U.S. Citizenship and Immigration Services (USCIS), a component of the Department of Homeland Security (DHS), for over six years. Id. ¶ 21. During those years, Jafarzadeh was interviewed twice by USCIS—once in 2011 and once in 2014—and was interviewed or contacted a number of times by the Federal Bureau of Investigation (FBI). Id. ¶¶ 22–23. Jafarzadeh believed, based on the "content and nature of these interviews," that the FBI wanted him to become a government informant, id. ¶ 24, and that the FBI "would have used its power to remove the roadblocks hindering the adjudication of his applications before USCIS" if he had agreed, id. ¶ 25. Jafarzadeh cooperated with the agents' questioning, but refused to become an informant. Id. He also "consistently denied ever having provided support to, expressed support for, or of having engaged in, terrorism or terrorist-related activity." Id. ¶ 26.

For six years, USCIS did not act on Jafarzadeh and Razeyeh's applications. Plaintiffs allege that the applications were funneled into a secret, alternate claims-processing system known as the Controlled Application Review and Resolution Program (CARRP), which was created in April 2008. Id. ¶¶ 26, 28–29. Plaintiffs allege that applications on this separate track "are reviewed under protocols that lack any authority or foundation in statute or regulation," and which "mandate[ ] denial or perpetual delay" of those applications, "regardless of the applicant's statutory eligibility for a particular immigration benefit." Id. ¶ 33.

Plaintiffs further contend that applications are selected for inclusion in CARRP if the applicant is a "Known or Suspected Terrorist" ("KST"), which in turn is based on whether the individual is listed in the "Terrorism Screening Database" ("TSDB"); or is a "Non-Known or Suspected Terrorist[ ]" ("non-KST"), meaning she has an "articulable link to ... an activity, individual or organization that has engaged in terrorist activity or been a member of a terrorist organization." Id. ¶¶ 30–32 (internal quotation marks omitted). According to plaintiffs, the TSDB is maintained by the FBI, and that agency, among others, is authorized to add individuals to the database. Id. ¶¶ 31, 34. Under CARRP, once an individual is deemed a KST, USCIS field officers are prohibited from granting that immigration application, "even if the applicant has satisfied all statutory and regulatory criteria."Id. ¶ 38. Thus, plaintiffs argue, CARRP unlawfully delegates authority over immigration to the FBI and other agencies that add names to the TSDB. Id. ¶ 56. Plaintiffs also allege that CARRP requires USCIS to deny applications on national security grounds far broader than those listed in the Immigration and Nationality Act (INA). Id. ¶¶ 47, 56.

Jafarzadeh and Razeyeh filed this action in June 2016, more than six years after filing their applications with DHS. The original complaint challenged CARRP on a number of administrative and constitutional grounds. On December 2, 2016, USCIS granted Razeyeh's petition, thereby recognizing Jafarzadeh as her immediate relative. See Collett Decl. [ECF No. 12-1] ¶ 3; Pls.' Response [ECF No. 21] at 1. But on February 10, 2017, USCIS denied Jafarzadeh's application for adjustment of status and placed him in removal proceedings. See Collett Decl. ¶¶ 4–5; USCIS Decision [ECF No. 15-2]; Notice to Appear [ECF No. 17-1]. The government argued that because plaintiffs sought an order requiring USCIS to act on their applications, their complaint had become moot. See Defs.' Mot. to Dismiss [ECF No. 12] at 7–8. DHS also asserted that the relief plaintiffs sought can only be obtained through the administrative process before an immigration judge ("IJ") and the Board of Immigration Appeals (BIA), followed by appeal to the appropriate circuit court. See Defs.' Reply Br. [ECF No. 17] at 5–7 & n.1. Additionally, DHS argued that plaintiffs' claims should be dismissed on the merits. Defs.' Mot. to Dismiss at 8–12.

In September 2017, the Court granted in part and denied in part defendants' motion to dismiss the case. See Sept. 7, 2017 Order [ECF No. 25]; Mem. Op. [ECF No. 26]. The Court first determined that the claim seeking adjudication of Jafarzadeh's and Razeyeh's petitions was moot, but that the other claims in the case—seeking invalidation of CARRP and a new adjudication free of CARRP—were not. See Mem. Op. at 8–10. The Court then found that the claims remaining in the case were ripe and free of finality or exhaustion concerns, because Jafarzadeh did not seek review of the ultimate decision USCIS had made on his LPR application (which would have to go through the administrative process outlined above) but rather had brought a collateral challenge to the procedure by which his application had been adjudicated—a claim which, under the reasoning of McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991), the text of the INA did not funnel into the administrative process. See Mem. Op. at 10–20.

After determining that it had jurisdiction to hear the case, the Court dismissed plaintiffs' claim to compel compliance with the INA, reasoning that the same claim could be and had been asserted under the Administrative Procedure Act (APA) and that neither the Mandamus Act nor the Court's inherent power to correct ultra vires agency action applied when relief was available elsewhere. See id. at 20–22. Because the government's only response to plaintiffs' substantive APA claim was that it was moot—an argument the Court rejected—the Court denied the motion to dismiss that claim. See id. at 22. The Court denied without prejudice the motion to dismiss plaintiffs' notice-and-comment claim, observing that the Court did not have enough information to resolve the issue because neither party had placed any CARRP materials in the record. See id. at 22–23. However, the Court granted the motion to dismiss plaintiffs' due process claim, finding that Jafarzadeh had no liberty or property interest protected by the Due Process Clause and that Razeyeh had not asserted such an interest herself. See id. at 23–25, 25 n.7. Finally, the Court found that joining the Director of the Executive Office of Immigration Review (EOIR) as a defendant, as plaintiffs requested, was unnecessary because the Attorney General was already a defendant and "is certainly empowered to grant the relief sought." Id. at 25–26.

Plaintiffs have since filed an amended complaint. See Am. Compl. The new complaint substituted Karami, Jafarzadeh's wife, for his daughter Razeyeh as the second plaintiff. Otherwise, the amended complaint makes factual allegations essentially identical to those in the original. Plaintiffs also bring many of the same claims for relief, though they have adjusted some in response to the Court's prior opinion. They claim that USCIS must re-adjudicate Jafarzadeh's LPR application "exclusive of CARRP" (Count I), id. ¶¶ 49–53; that CARRP violates the separation of powers by creating criteria and procedures not authorized by the INA (Count II), id. ¶¶ 54–57; that CARRP violates the APA because it is not in accordance with the INA or the Constitution (Count III), id. ¶¶ 58–59; that adjudicating Jafarzadeh's application under CARRP without explanation or a...