Mohammed v. Holder

• Decision Date: 01 March 2010
• Docket Number: Civil Action No. 1:09cv1284.
• Citation: 695 F. Supp.2d 284
• Parties: Dalia MOHAMMED, Petitioner, v. Eric H. HOLDER, et al., Respondents.
• Court: U.S. District Court — Eastern District of Virginia

695 F. Supp.2d 284

Dalia MOHAMMED, Petitioner, v. Eric H. HOLDER, et al., Respondents.

Civil Action No. 1:09cv1284.

United States District Court, E.D. Virginia, Alexandria Division.

March 1, 2010.

James Algernon Roberts, Law Office of James Roberts, Fairfax, VA, for Petitioner.

Dennis Carl Barghaan, Jr., United States Attorney's Office Alexandria, VA, for Respondents.

MEMORANDUM OPINION

T.S. ELLIS, III, District Judge.

The threshold jurisdictional question in this immigration case is whether a district court must grant a writ of mandamus ordering the U.S. Customs and Immigration Service ("USCIS") to adjudicate an application for adjustment of status where the USCIS has already administratively closed the application. For the reasons stated here, the petition does not present a justiciable case or controversy and therefore respondents' motion to dismiss must be granted.

I.

The material facts relating to the petition for a writ of mandamus are not disputed by the parties.¹

Petitioner is a native and citizen of Sudan currently residing in the United States. The named respondents are the following federal government officials, all of whom jointly filed the motion to dismiss at bar: (i) Eric H. Holder, U.S. Attorney General; (ii) Janet Napolitano, Secretary of the Department of Homeland Security ("DHS"); (iii) Sarah Taylor, Director of the USCIS Washington Office; and (iv) Alejandro Mayorkas, Director of USCIS.

Petitioner entered the United States on June 21, 1996, using a valid B-2 visitor visa that expired on December 20, 1996.² Petitioner did not leave the United States prior to the expiration of her B-2 visa; rather, she remained in the United States and on March 17, 1997, filed an I-589 Application for Asylum and Withholding of Deportation with the Immigration and Naturalization Service ("INS").³ In her I-589 application, petitioner claimed that she feared persecution in Sudan because of her political beliefs. See Defs. Ex. 1.

Approximately one year later on March 27, 1998, petitioner's asylum and withholding of removal application was referred to an immigration judge following an interview regarding her application.⁴ On April 8, 1998, petitioner was given oral notice to appear before an immigration judge on June 10, 1998 because the INS believed she had overstayed her B-2 visitor visa without INS authorization and was therefore subject to removal from the United States under certain provisions of the Immigration and Nationality Act ("INA"). See Defs. Ex. 2 (recording oral notice on Form I-862). In a February 24, 1999 oral decision, the transcript of which is memorialized in a written order, the immigration judge denied petitioner's application for asylum because she failed to prove by clear and convincing evidence that she had a well-founded fear of persecution within the meaning of the INA. Significantly, the immigration judge also denied petitioner's application for withholding of removal, but allowed petitioner to depart the United States voluntarily at her own expense by April 26, 1999, in lieu of removal. See Defs. Ex. 4.

Petitioner appealed the immigration judge's decision to the Board of Immigration Appeals ("BIA").⁵ In a May 21, 2003 per curiam decision, the BIA affirmed the immigration judge's decision to deny petitioner's application on the ground that her immigration history and allegation of prior detention in Sudan did not evidence a fear of political persecution as defined by the INA. See Defs. Ex. 5. Accordingly, petitioner was afforded thirty days in which to depart the United States voluntarily, which she failed to do. Additionally, she failed to appeal the BIA decision to the Fourth Circuit Court of Appeals.⁶

On June 11, 2001, during the pendency of the BIA appeal, petitioner's husband—a naturalized U.S. citizen as of 2000, whom petitioner married in 1997—filed an I-130 Petition for Alien Relative pro se with the USCIS. See Defs. Ex. 3. An I-130 petition, which is filed by a lawful permanent resident or U.S. citizen, only establishes the relationship between the I-130 petitioner and an alien relative seeking an immigrant visa or permanent residency; it does not change an alien's status.⁷ Although the I-130 petition was approved on December 20, 2001, petitioner did not apply for adjustment of status or file additional immigration documents with the USCIS for four years. Significantly, petitioner also did not advise her immigration attorney, the immigration judge, or the BIA of either (i) her 1997 marriage to a then-permanent resident who was thereafter naturalized in 2000, or (ii) the successful I-130 petition. Only the USCIS, by virtue of adjudicating the I-130 petition, was aware of petitioner's marriage to a U.S. citizen.

Thus, to recapitulate briefly, as of mid-2003 petitioner was: (i) subject to a voluntary order of removal that had been affirmed by the BIA but had not been appealed to the Fourth Circuit; and (ii) had been afforded the right to apply for an adjustment of status or immigrant visa, but did not file such a petition. Instead of voluntarily departing the United States or applying for an adjustment of status, petitioner remained unlawfully in the United States. Petitioner did not acquire temporary lawful immigrant status until 2005, when she applied for, and was granted, Temporary Protective Status ("TPS") by the Secretary of DHS.⁸See Defs. Exs. 6, 7. This status ensures, for the duration of petitioner's TPS, that she will not be removed from the United States and that she is eligible to apply for work authorization. See 8 U.S.C. § 1254a(f). Petitioner's current TPS and work authorization is set to expire in May 2010, although it is renewable until Sudan's current TPS designation expires in 2011, at which time the Secretary of DHS may re-designate Sudan as a TPS country.

Not until January 5, 2006,⁹ four years after the I-130 petition was granted, did petitioner file an I-485 application for adjustment of status with the USCIS. See Defs. Ex. 8. It is this application that is the subject of the petition for a writ of mandamus. In the course of a September 21, 2006 USCIS interview regarding her I-485 application, petitioner revealed that she had previously been subject to a removal order by an immigration judge.¹⁰ Based on this information, the USCIS by letter dated October 2, 2006, advised petitioner that her application had been administratively closed. Specifically, the letter states:

A complete review of the records of this Service indicates that you are in removal proceedings.

Title 8 Code of the Federal Regulation sic, Part 245.2(a)(1) states that:

After an alien is in deportation or removal proceeding sic, his or her application for adjustment of status shall be considered only in those proceedings.

Since the immigration court has sole jurisdiction over your case, your Application to Register Permanent Residence or Adjust Status is hereby administratively closed. No further action will be taken on the application.

Defs. Ex. 9. Notably, the letter further advises petitioner that although no appeal may be taken from the USCIS's decision to close her application for adjustment of status administratively, petitioner may file a "motion to reopen" her removal proceedings with the BIA, which would allow adjudication of her application for adjustment of status by an immigration judge.

Consistent with this advice, petitioner filed a motion to reopen with the BIA in April 2007. In support of her motion, petitioner filed a memorandum acknowledging that the motion, filed more than 90 days after the BIA affirmed the immigration judge's order, was untimely. Further, petitioner conceded that no exceptional circumstances justified her motion, but argued that the BIA should nonetheless reopen the proceeding sua sponte. See Defs. Ex. 10. The BIA, recognizing that it had the discretion to reopen proceedings, elected not to do so, denying petitioner's motion in a June 5, 2007 per curiam opinion that states, in pertinent part:

The sole explanation provided by the respondent for failing to raise her eligibility for adjustment in a timely motion to reopen is her own failure to inform her attorney of this fact. However, she has not stated why she waited almost four years since the Board's decision to submit the instant motion. The respondent's failure to diligently pursue sic her own claim does not merit an exercise of this Board's sua sponte authority. We further note that our discretion to reopen sua sponte is limited to cases where exceptional circumstances are demonstrated. The respondent's eligibility for legal status in this country and failure to diligently pursue sic her case do not constitute exceptional circumstances warranting our consideration of an untimely motion.

Defs. Ex. 11 (internal citations omitted).

As before, petitioner did not appeal the BIA's decision to the Fourth Circuit Court of Appeals.¹¹ Instead, petitioner waited until November 11, 2009—more than 29 months after the BIA denied her motion to reopen her deportation proceeding—to file the instant petition for a writ of mandamus in federal district court.¹² Shortly thereafter, respondents filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), Fed.R.Civ.P. Although petitioner did not file an opposition brief, counsel for both petitioner and respondents appeared at a February 26, 2010 hearing, at which time the matter was fully argued.¹³ Accordingly, respondents' motion to dismiss is ripe for disposition.

II.

Petitioner seeks a writ of mandamus ordering the USCIS to adjudicate her adjustment of status application, which the USCIS administratively closed on October 2, 2006. In her petition, she claims that jurisdiction is proper in federal court under the mandamus statute, 28 U.S.C. § 1361, and the federal question statute, 28 U.S.C. § 1331, as well as judicial review provisions of the Administrative Procedure Act ("APA") that authorize courts to "compel...