Namarra v. Mayorkas

• Decision Date: 20 February 2013
• Docket Number: Civil No. 12–1792 (JNE/JSM).
• Citation: 924 F.Supp.2d 1058
• Parties: Elizabeth NAMARRA, Ephraim Olani, Aster Namarra, Plaintiffs, v. Alejandro MAYORKAS, Director, United States Citizenship and Immigration Services, and Janet Napolitano, Secretary, Department of Homeland Security, Defendants.
• Court: U.S. District Court — District of Minnesota

924 F.Supp.2d 1058

Elizabeth NAMARRA, Ephraim Olani, Aster Namarra, Plaintiffs,

v.Alejandro MAYORKAS, Director, United States Citizenship and Immigration Services, and Janet Napolitano, Secretary, Department of Homeland Security, Defendants.

Civil No. 12–1792 (JNE/JSM).

United States District Court,

D. Minnesota.

Feb. 20, 2013.

Marc Prokosch, Karam & Associates, Bloomington, MN, for Plaintiffs.

Anna Emily Nelson, Department of Justice, Washington, DC, Gregory G. Brooker, United States Attorney's Office, Minneapolis, MN, for Defendants.

ORDER

JOAN N. ERICKSEN, District Judge.

This is an immigration lawsuit brought by Plaintiffs Elizabeth Namarra (“Elizabeth”), Ephraim Olani (“Olani”), and Aster Namarra (“Aster”), against Defendant Alejandro Mayorkas in his official capacity as Director of U.S. Citizenship and Immigrations Services (“USCIS”) and Defendant Janet Napolitano in her official capacity as the Secretary of the Department of Homeland Security, the agency of which USCIS is a part. All three plaintiffs' applications for adjustment of status are currently pending. Plaintiffs assert that there has been an unreasonable delay in adjudicating their applications. Currently before the Court is Defendants' motion to dismiss under Rules 12(b)(1) and 12(b)(6), and alternatively, motion for summary judgment.

I. BACKGROUND

The Immigration and Nationality Act (“INA”) provides that refugees and asylees may have their status adjusted to that of lawful permanent resident. See8 U.S.C. § 1159. Some classes of aliens, however, are ineligible for lawful permanent resident status. One such class includes persons who have engaged in certain terrorism-related activities—these aliens are inadmissible. See id. § 1182(a)(3)(B).

Until May 2005, asylum-based adjustment of status applications were subject to an annual cap of 10,000. This cap resulted in a backlog of applications, with more than 160,000 asylees waiting for adjudication of their applications. In May 2005, Congress enacted the REAL ID Act of 2005, Pub. L. No. 109–13, Div. B., 119 Stat. 231, 302–309 (May 11, 2005), which, among other things, lifted the annual cap on asylum-based applications, gave the Secretary of Homeland Security discretionary authority to exempt certain terrorism-related inadmissibility grounds, and amended the definitions related to the terrorism-related inadmissibility grounds. See Debba v. Heinauer, 366 Fed.Appx. 696, 698 (8th Cir.2010). On December 26, 2007, Congress enacted the Consolidated Appropriations Act of 2008 (“CAA”), Pub. L. 110–161, 121 Stat. 1844 (Dec. 26, 2007) (codified in part at 8 U.S.C. § 1182(d)(3)(B)(i)), which expanded the Secretary of Homeland Security's authorityto exempt individuals from certain terrorism-related inadmissibility grounds and to exempt certain organizations from being considered Tier III organizations.¹ In response to the passage of the CAA, USCIS issued a policy memorandum on March 26, 2008, directing its field agents to withhold adjudication of certain cases in which the only ground for denial was a terrorism-related inadmissibility provision and the applicant may benefit from a future exercise of the Secretary's discretionary exemption authority. The policy memorandum also directed the agents to reopen and place on hold any adjustment applications that had already been denied if those applications could be considered for a discretionary exemption under § 1182(d)(3)(B) in the future.

Plaintiff Elizabeth Namarra is an Ethiopian who was admitted to the United States as a nonimmigrant student in 1986. She married co-Plaintiff Olani in December 1991. In October 1993, Elizabeth applied for asylum—her application was granted in May 2002. In March 2004, she filed a Form I–485, applying to become a lawful permanent resident. After conducting the required checks, USCIS denied the application in February 2008, finding that Elizabeth was inadmissible under 8 U.S.C. § 1182(a)(3)(B). Elizabeth was found inadmissible under this provision because she has supported, and continues to support, the Oromo Liberation Front (“OLF”), an organization that has been classified as a Tier III terrorist organization.² Pursuant to the March 2008 policy memorandum, however, USCIS reopened Elizabeth's application in April 2008 and placed it on hold. No exemption currently applies to Elizabeth, and so her application remains pending.

Plaintiff Ephraim Olani, Elizabeth's husband, is an Ethiopian who was admitted to the United States as a nonimmigrant student in September 1991. After Elizabeth's asylum application was granted, she filed an asylee relative petition on Olani's behalf. The asylee relative petition was approved in April 2004, granting derivative asylum status to Olani. Olani filed an application for adjustment of status in June 2005. His application included information indicating that he was a member and supporter of the OLF. After the FBI completed the required name-check in June 2005, Olani's application was placed on hold pursuant to USCIS policy because of legislation affecting the adjudication of his application, including the REAL ID Act of 2005 and the CAA. Olani is currently inadmissible because he is a member of a terrorist organization and has engaged in terrorist activity. Because no exemption currently applies to Olani, his application for adjustment of status remains pending.

Plaintiff Aster Namarra, Elizabeth's sister, is an Ethiopian who was admitted to the United States as the dependent spouse of a nonimmigrant student in May 1991. She failed to depart the United States when her husband returned to Ethiopia. Aster applied for asylum in January 1993, and she was ultimately granted asylum in February 2002. Aster applied for adjustment of status in July 2003. Like Elizabeth and Olani, Aster, too, had been and continues to be a supporter of the OLF. USCIS denied her application in February 2008, finding her inadmissible due to terrorism-related activities under 8 U.S.C. § 1182(a)(3)(B). Pursuant to the March 2008 policy memorandum, USCIS reopened Aster's application in April 2008. No exemption currently applies to Aster, and her application remains pending.

Numerous exemptions to the terrorism-related inadmissibility grounds have already been issued under the Secretary's discretionary authority. See Canaan Decl. (Ex. 1) ¶ 23 n. 1, ECF No. 11 (describing exemptions issued in February 2007, April 2007, June 2008, September 2009, January 2011, March 2011, November 2011, June 2012, and August 2012). Between mid–2006 and August 2012, USCIS has granted 14,885 exemptions. None of the exemptions, however, currently apply to any of the plaintiffs in this case. On August 10, 2012, the Secretary of Homeland Security exercised her discretionary exemption authority for certain individuals who provided material support, solicited funds or members, or received certain military-type training for certain Tier III organizations. Application of this exemption requires USCIS to assess first whether the particular Tier III organization meets certain requirements, such as whether the organization has used child soldiers or engaged in a pattern or practice of torture or genocide. After assessing the organization, USCIS then assesses the individual applicants to determine whether they are eligible for consideration under the exemption. If the applicant is found eligible, then his or her application would be removed from hold and adjudicated. USCIS is currently in the process of determining whether the OLF meets the qualifications for the exemption.

Plaintiffs filed this action on July 24, 2012, seeking to compel USCIS to implement exemptions, apply those exemptions to Plaintiffs, and adjudicate their applications for lawful permanent residency. Defendants contend that the Court lacks subject matter jurisdiction over this dispute.

II. DISCUSSION

“Dismissal for lack of subject matter jurisdiction will not be granted lightly.” Wheeler v. St. Louis Sw. Ry. Co., 90 F.3d 327, 329 (8th Cir.1996). “Dismissal is proper, however, when a facial attack on a complaint's alleged basis for subject matter jurisdiction shows there is no basis for jurisdiction.” Id. The party asserting jurisdiction has the burden of proving by a preponderance of the evidence that subject matter jurisdiction exists. See VS Ltd. P'ship v. Dep't of Hous. & Urban Dev., 235 F.3d 1109, 1112 (8th Cir.2000).

Before addressing the merits of the jurisdictional dispute, the Court first finds it necessary to clarify the real issue presented in this case. It is undisputed that absent a determination regarding whether the OLF, as an organization, qualifies under one of the Secretary's exemptions, there are no exemptions that currently apply to Plaintiffs. All three plaintiffs' applications have been processed and the required checks have been completed, and it has been determined that these plaintiffs are currently statutorily ineligible for an adjustment of status. The precise issue in this case is strikingly different from cases in which USCIS has failed to perform some ministerial task with respect to an application or when USCIS has failed to adjudicate an asylee's application for whom an exemption does already exist.

Here, there is no claim that USCIS has forgotten about the OLF or about these three individuals, nor is there any assertion that USCIS has simply fallen asleep at the switch. Rather, the parties agree that the Secretary has been issuing exemptions pursuant to her discretionary authority and that USCIS has been processingadjustment of status applications as applicable exemptions are issued. The parties also agree that USCIS is currently and actively considering the OLF, pursuant to the congressionally authorized inquiry, but has yet to make a decision regarding whether or not it qualifies under an existing exemption. Further, Plaintiffs do not dispute that they are properly classified as belonging to a Tier III terrorist organization, that their...