Mohsenzadeh v. Kelly

• Citation: 276 F.Supp.3d 1007
• Decision Date: 06 September 2017
• Docket Number: Case No.: 3:14–cv–2715–L–RBB
• Parties: Zafar MOHSENZADEH, Plaintiff, v. John F. KELLY, Secretary of the Department of Homeland Security, et al., Defendants.
• Court: U.S. District Court — Southern District of California

276 F.Supp.3d 1007

Zafar MOHSENZADEH, Plaintiff,

v.John F. KELLY, Secretary of the Department of Homeland Security, et al., Defendants.

Case No.: 3:14–cv–2715–L–RBB

United States District Court, S.D. California.

Signed September 6, 2017

Jevon I. Hatcher, The Law Office of Jevon I. Hatcher, San Diego, CA, for Plaintiff.

U.S. Attorney CV, Caroline Jane Clark Prime, Samuel William Bettwy, U.S. Attorney's Office, San Diego, CA, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISIMISS

Hon. M. James Lorenz, United States District Judge

Pending before the Court is Defendants' motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), or alternatively for summary judgment under Rule 56. Plaintiff filed an opposition. Defendants did not reply. The matter is submitted on the briefs without oral argument. See Civ. L. R. 7.1(d)(1). For the reasons stated below, Defendants' motion to dismiss is granted for lack of subject matter jurisdiction. This action is dismissed without prejudice.

I. BACKGROUND

Plaintiff Zafar Mohsenzadeh is an Iranian national who was granted asylum in the United States in or around 1995. On February 25, 2012, he filed an application form I–485 for adjustment of status to permanent residence. (Compl. at 3.) The United States Citizenship and Immigration Services ("CIS") confirmed receipt of the application, Plaintiff attended the Biometrics and INFOPASS appointments, and made status inquiries. (Id. at 3–4 & Ex. 1.) So far, his application has not been adjudicated.

It is undisputed that Plaintiff's application is on hold because he was found inadmissible under 8 U.S.C. § 1182(a)(3)(B) due to his support of a Tier III terrorist organization, see 8 U.S.C. § 1182(a)(3)(B)(vi)(III). (Opp'n at 2, 3.) In his asylum application Plaintiff allegedly disclosed that, while still in Iran, he had distributed literature for Mojahedin-e Khalq ("MEK"), a Tier III terrorist organization.¹ (Opp'n at 3.) "Most forms of immigration relief are barred by statute for aliens who have engaged in terrorist activities." Bojnoordi v. Holder , 757 F.3d 1075, 1077 n.2 (9th Cir. 2014) ; see also 8 U.S.C. § 1182(a)(3)(B)(iii), (iv)&(vi) (defining "terrorist activity," "engage in terrorist activity" and "terrorist organization," respectively). Section 1182(a)(3)(A) renders such individuals inadmissible, thus precluding granting an application for permanent residence.

However, the Secretary of Homeland Security (hereinafter sometimes "Secretary") has authority and discretion to make exceptions for individuals or Tier III terrorist organizations. 8 U.S.C. § 1182(d)(3)(B) ("discretionary exemption"). Pursuant to this provision, since May 24, 2007, the Department of Homeland Security ("DHS") issued a series of memoranda providing guidance for processing applications which, like Plaintiff's, would be denied but for the possibility of a favorable exercise of the discretionary exemption. (Defs' Exh. at 1–43.)² The memoranda direct the CIS to deny applications where, due to individual circumstances, the applicant would be ineligible for the discretionary exemption even if the related Tier III terrorist organization were exempted. However, cases where the applicant could benefit are put on hold pending exemption. Numerous exemptions have been granted and cases released from hold under this procedure. See, e.g. , Islam v. Heinauer , 32 F.Supp.3d 1063, 1071 (N.D. Cal. 2014) ("[B]etween mid–2006 and June 2013, USIC granted a total of 15,808 exemptions in cases involving terrorist-related inadmissibility grounds. Moreover, [from] June 2010 [through March 2014] USCIS released over 3,500 cases from hold.") (internal quotation marks and citations omitted); Singh v. Napolitano , 909 F.Supp.2d 1164, 1175 (E.D. Cal. 2012) ("new organizations have received exemptions, and thousands of aliens have benefitted from those exemptions"). As his application has not been denied, it appears that Plaintiff can benefit from an exemption.

Plaintiff has been awaiting adjudication since 2012. Dissatisfied with the lack of progress, he filed the pending Complaint for Relief in the Nature of Mandamus against the Secretary, Director of the CIS, Center Director of Nebraska Service Center of the CIS, Acting District Director of the San Diego District of the CIS, and the Attorney General of the United States (collectively "Defendants"). Plaintiff requests an order directing Defendants to adjudicate his application for permanent residence without further delay. Defendants filed a motion to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction, Rule 12(b)(6) for failure to state a claim, or alternatively Rule 56 for summary judgment.

II. DISCUSSION

Rule 12(b)(1) provides for dismissal if subject matter jurisdiction is lacking. Unlike State courts,

Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree. It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.

Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (citations omitted). Federal courts must satisfy themselves of jurisdiction over the subject matter before proceeding to the merits. Ruhrgas AG v. Marathon Oil Co. , 526 U.S. 574, 583, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999). The court must dismiss an action if subject matter jurisdiction is lacking. Fed. R. Civ. P. 12(h)(3) ; see also Hansen v. Dep't of Treasury , 528 F.3d 597, 600 (9th Cir. 2007).

Defendants argue that jurisdiction is barred by 8 U.S.C. § 1252(a)(2)(B), which states:

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D),^[3] and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review—

(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or

(ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter ^[4] to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title.

Because the CIS has not yet adjudicated Plaintiff's application, clause (i) does not apply. To prevail under clause (ii), the decision to hold Plaintiff's application in abeyance must (1) constitute "any other decision or action of the Attorney General or the Secretary;" (2) that was made under authority provided under Subchapter II; and (3) is specified to be discretionary.

It is undisputed that the first two requirements are met. The CIS is an organization within the DHS and is overseen by the Secretary. See https://www.dhs.gov, last visited Sep. 5, 2017. Placing Plaintiff's application on hold was a decision or action other than "judgment regarding the granting of relief." See 8 U.S.C. § 1252(a)(2)(B). The authority to adjudicate Plaintiff's application is found in Subchapter II at 8 U.S.C. §§ 1159(b) (adjustment of status for asylees) and 1255(a) (adjustment of status for nonimmigrants). Authority to grant the application under the discretionary exemption is found in Subchapter II at 8 U.S.C. § 1182(d)(3)(B)(i).

Plaintiff concedes that adjudication of his application is within the Secretary's "full discretion." (Opp'n at 2; see also id. at 8.) He argues that judicial review is available to order Defendants to issue a decision which has taken too long. He alleges that Defendants have unreasonably delayed adjudication of his application, and also suggests that they have refused to adjudicate it. (See Compl. at 5; Opp'n at 2, 8–9.) While it is apparent from the allegations that the adjudication has taken a long time—five and a half years, Plaintiff's suggestion that Defendants are refusing to adjudicate is unsupported. The delay of five and a half years is insufficient to show refusal to adjudicate. A six-year delay in processing I–485 applications is not unreasonable per se. See, e.g. , Asmai v. Johnson , 182 F.Supp.3d 1086, 1095 (E.D. Cal. 2016) ; Islam , 32 F.Supp.3d at 1071–72 ; Singh , 909 F.Supp.2d at 1175. If delay is not unreasonable, it, a fortiori , cannot show refusal to act. Moreover, Plaintiff's own allegations regarding the steps that Defendants have taken so far (see Compl. at 3–4) show that this is not a case where Defendants have refused to act on his application. The dispute focuses on the issue whether the pace of processing his application is discretionary, i.e. , whether § 1252(a)(2)(B)(ii) bars judicial review of the pace of adjudication.

The parties cite no binding authority on point. Defendants' reliance on the holding of Hassan v. Chertoff , 593 F.3d 785 (9th Cir. 2010), that the court lacked jurisdiction to review denial of Hassan's application for adjustment of status, is unavailing. Section 1252(a)(2)(B)(i) barred review because, unlike here, the application in Hassan was denied. Id. at 788–89. No circuit court of appeals has squarely ruled on the issue of jurisdiction over the pace of adjudication. Bian v. Clinton , 605 F.3d 249, 252 (5th Cir. 2010) ; vacated as moot at 2010 WL 363370 (I–485 application granted). District courts across the United States are divided. See id. at 252 & n.3 (surveying cases and noting that "District courts that have considered this issue have divided sharply"); see also, e.g. , Khan v. Johnson , 65 F.Supp.3d 918, 925 (C.D. Cal. 2014) (collecting and discussing cases); Beshir v. Holder , 10 F.Supp.3d 165, 172, 173–74 (D.D.C. 2014) (same); Singh , 909 F.Supp.2d at 1169–70 (same).

In Kucana v. Holder , the Supreme Court interpreted § 1252...