Khan v. Johnson

• Decision Date: 01 December 2014
• Docket Number: Case No. 2:14–CV–06288–CAS CWx.
• Citation: 65 F.Supp.3d 918
• Court: U.S. District Court — Central District of California
• Parties: Abdul M. KHAN, et al. v. Jeh JOHNSON, et al.

65 F.Supp.3d 918

Abdul M. KHAN, et al.

v.Jeh JOHNSON, et al.

Case No. 2:14–CV–06288–CAS CWx.

United States District Court, C.D. California.

Signed Dec. 1, 2014.

Laura Weinstock, for Plaintiffs.

Anthony Bianco, for Defendants.

DEFENDANTS' MOTION TO DISMISS, OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT (ECF No. 10, filed October 24, 2014)

CHRISTINA A. SNYDER, District Judge.

I. INTRODUCTION

In this immigration-related action, plaintiffs Abdul M. Khan, Rozina Khan, Mariam Khan, and Muhammad Laraib Khan seek an order compelling the government to adjudicate their I–485 applications for adjustment of citizenship status. Plaintiffs filed the instant case on August 11, 2014 against defendants Jeh Johnson (Secretary of the Department of Homeland Security), Alejandro Mayorkas (Director of the United States Bureau of Citizenship and Immigration Services), and George S. Mihalko (Director of the Los Angeles Office of the United States Bureau of Citizenship and Immigration Services). ECF No. 1 (“Compl.”). In brief, the complaint asserts that the government has unreasonably delayed its adjudication of plaintiffs' I–485 applications. See generally Compl. Plaintiffs allege violations of the Administrative Procedures Act (“APA”), 5 U.S.C. § 701 et seq., and 5 U.S.C. § 555(b). Id. ¶¶ 23, 24. Plaintiffs request a “writ in the nature of mandamus” ordering defendants to adjudicate their pending I–485 applications, as well as attorneys' fees.

On October 24, 2014, defendants moved to dismiss the case for lack of jurisdiction and failure to state a claim, and for summary judgment on the ground that the delay has, as a matter of law, not been unreasonable. ECF No. 10. Plaintiffs filed an opposition on November 10, 2014, ECF No. 12, and defendants replied on November 17, 2014, ECF No. 16. On December 1, 2014, the Court held a hearing at which counsel for the parties appeared. After considering the parties' arguments, the Court concludes that defendants' motion should be denied for the reasons that follow.

II. BACKGROUND

A. Plaintiffs' Allegations

The following facts are alleged in plaintiffs' complaint and taken as true for purposes of the motion to dismiss. Plaintiff Abdul Khan is a native and citizen of Pakistan who entered the United States with a visitor visa on November 14, 2001. Compl. ¶ 2. Plaintiff Rozina Khan is Abdul Khan's wife, and plaintiffs Mariam and Muhammad Laraib Khan are the couple's children. Id. Abdul Khan was granted asylum by the Board of Immigration Appeals (“BIA”) on October 27, 2005, and his wife and children were granted asylum as a result of the BIA's decision. Id.; see id. Ex. A (BIA Decision). On June 8, 2007, an attorney filed on plaintiffs' behalf an I–485 Application to Register Permanent Residence or Adjust Status. Id. ¶ 2.

In the seven-plus years since the I–485 application's filing, plaintiffs have made numerous inquiries regarding the status of their applications. Id. ¶ 11. On June 24, 2009, USCIS sent Abdul Khan a letter stating: “Your case is on hold because you appear to be inadmissible under [section] 212(a)(3)(B) of the [Immigration and Nationality Act], and USCIS currently has no authority not to apply the inadmissibility ground(s) to which you appear to be subject.”¹ Id. Ex. D. The letter further explained: “Rather than denying your application based on inadmissibility, we are holding adjudication in abeyance while the Department of Homeland Security consider additional exercised [sic ] of the Secretary of Homeland Security's discretionary authority. Such an exercise of the exemption authority might allow us to approve your case.” Id. The parties agree that this determination of possible inadmissibility is based on Abdul Khan's affiliation with the Muttahida Quami Movement—Altaf Faction (“MQM–A”), which defendants consider a terrorist organization. Id. ¶ 14; see ECF No. 11–1 (“Canaan Decl.”) ¶ 12. According to plaintiffs, however, Abdul Khan's “former activities for [MQM–A] were legal, democratic, and peaceful.” Compl. ¶ 14. Plaintiffs allege that, through MQM–A, Abdul Khan “helped Indian émigrés find housing, electricity and employment with small businesses.” Id. “At no time,” plaintiffs aver, has Abdul Khan “supported, contributed, or provided material support to a terrorist organization,” or received military training Id. ¶ 14, 17. Plaintiffs further contend that MQM–A has never “target [ed] U.S. interests or persons” and has not been “identified with Al–Qaida and the Taliban.” Id. ¶ 17.

Plaintiffs state that they have lived peacefully in the United States for nearly thirteen years, and that defendants “have received all required documents necessary to move forward on” their applications. Id. ¶¶ 19, 20. Plaintiffs contend that, as a result of defendants' delay, they have been forced to repeatedly apply and pay for extensions of employment authorization and have been deprived of certain legal benefits of permanent residency. Id. ¶ 22.

B. Defendants' Additional Undisputed Evidence

The following additional facts are not in material dispute, and are mostly based on a declaration by Gareth R. Canaan (“Canaan”), a Section Chief for USCIS. According to Canaan, USCIS presumes based on Abdul Khan's mention of the MQM–A on his asylum claim and I–485 application that he continues to be a member of a terrorist organization. Def. Statement Undisputed Facts (“DSUF”) ¶ ¶ 8, 9, 12. Abdul Khan admitted that he was still a member of the MQM–A after arriving in the United States, and that he had distributed propaganda and solicited funds on behalf of the MQM–A. Id. ¶¶ 10, 11.

The MQM–A traces its history to a student movement group called the Mohajir Quami Movement, and claims to represent Mohajirs—Urdu-speaking Muslims who originally fled to Pakistan from India following the 1947 partition of the two countries. Id. ¶¶ 13, 14. In 1992, what is now the MQM–A split off from the Mohajir Quami Movement Haqiqi. Id. ¶ 15. In 1996, other political groups in Pakistan reported that their members had been tortured and killed by the MQM–A. Id. ¶ 19. Additionally, Canaan avers that the group has called for strikes within Pakistan. Id. ¶ 20.

Pursuant to 8 C.F.R. § 209.2, when an alien applies for adjustment of status, USCIS conducts several types of security and background checks to ensure that the alien is eligible for lawful permanent resident status and that he or she is not a risk to national security or public safety. Id. ¶¶ 21, 22. Moreover, the Secretary of Homeland Security's discretionary exemption authority under 8 U.S.C. § 1182(d)(3)(B)(i) requires the vetting of so-called “Tier III” groups' background and actions, as well as a consideration of national security, humanitarian, and foreign policy concerns.² Id. ¶ 27–29. Between mid–2006 and June 2014, USCIS granted approximately 18,000 discretionary exemptions in cases involving terrorism-related inadmissibility grounds.Id. ¶ 31. To date, USCIS has not determined that either the MQM–A or plaintiffs qualify for an exemption. Id. ¶¶ 32–34.³

Beginning on March 26, 2008, the Deputy Director of USCIS issued a series of memoranda providing guidance regarding cases involving inadmissibility pursuant to § 1182(a)(3)(B). Id. ¶¶ 35, 36. This guidance responded to the passage of the Consolidated Appropriations Act, Pub.L. 110–61, 121 Stat. 1844 (December 26, 2007) (“CAA”). Pursuant to the CAA, the Secretary of Homeland Security has expanded discretionary authority to exempt terrorism-related inadmissibility grounds as to individual aliens, and to exempt certain Tier III terrorist organizations entirely. See 8 U.S.C. § 1182(d)(3)(B)(i). The March 26, 2008 memorandum instructed adjudicators to withhold adjudication of cases that could potentially benefit from the Secretary's expanded discretionary authority under the CAA. Id. ¶ 36. Defendants aver that plaintiffs' applications have been placed on hold pursuant to this guidance. Id. ¶ 37. A November 28, 2011 memorandum instructed that applications be held for applicants who are inadmissible under § 1182(a)(3)(B) based on activity relating to any Tier III terrorist organization, as well as their spouses or children. Id. ¶ 38.

III. MOTION TO DISMISS

Defendants argue that the Court lacks subject matter jurisdiction over the complaint and that, even if Court does have jurisdiction, the complaint fails to state a claim upon which relief can be granted. For the reasons stated below, the Court disagrees with both contentions.

A. Legal Standard

1. Lack of Subject Matter Jurisdiction

A motion to dismiss an action pursuant to Federal Rule of Civil Procedure 12(b)(1) raises the objection that the court has no subject matter jurisdiction to hear and decide the case. This defect may exist despite the formal sufficiency of the allegations in the complaint. See T.B. Harms Co. v. Eliscu, 226 F.Supp. 337, 338 (S.D.N.Y.1964), aff'd 339 F.2d 823 (2d Cir.1964) (“In considering the plea for lack of jurisdiction, the formal allegations must yield to the substance of the claim.”). A challenge to subject matter jurisdiction “can be either facial, confining the inquiry to allegations in the complaint, or factual, permitting the court to look beyond the complaint.” Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n. 2 (9th Cir.2003). Therefore, when considering a Rule 12(b)(1) motion challenging the substance of jurisdictional allegations, the Court is not restricted to the face of the pleadings, but may review evidence, such as declarations and testimony, to resolve any factual disputes concerning the existence of jurisdiction. See McCarthy v. United States, 850 F.2d 558, 560 (9th Cir.1988). The burden of proof on a Rule 12(b)(1) motion is on the party asserting jurisdiction. See Sopcak v. N. Mountain Helicopter Serv., 52 F.3d 817, 818 (9th Cir.1995) ; Ass'n of Am. Med. Colls. v. United States, 217 F.3d 770, 778–79 (9th Cir.2000).

2. Failure to State a Claim

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the...