Saleh v. Pastore

Decision Date27 April 2021
Docket Number19 Civ. 11799 (KPF)
PartiesTAREK YOUSSEF HASSAN SALEH, Plaintiff, v. GINA PASTORE, as Brooklyn Field Office Director U.S. Citizenship and Immigration Services; SUSAN QUINTANA, as New York City Field Office Director U.S. Citizenship and Immigration Services; LEE BOWES, as Acting Field Office Director, Northeast Region, USCIS; TRACY RENAUD, Acting Director, USCIS; ALEJANDRO MAYORKAS, Secretary U.S. Department of Homeland Security; CHRISTOPHER WRAY, Director Federal Bureau of Investigation; and MERRICK B. GARLAND, Attorney General U.S. Department of Justice, Defendants.
CourtU.S. District Court — Southern District of New York
OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge:

Plaintiff Tarek Youssef Hassan Saleh, proceeding pro se, brings this action seeking an order (i) compelling United States Citizenship and Immigration Services ("USCIS") to adjudicate his Application for Naturalization ("Form N-400") and (ii) enjoining USCIS from employing the Controlled Application Review and Resolution Program ("CARRP") in making that adjudication. Plaintiff's Complaint alleges violations of the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1101 to 1537; Congress's powers to establish a uniform Rule of Naturalization, U.S. Const. art. I, § 8, cl. 4; the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 500 to 596; and Plaintiff's Fifth Amendment right to due process, U.S. Const. am. V. Plaintiff seeks declaratory, injunctive, and mandamus relief.

Plaintiff's Complaint originally named as Defendants, all in their official capacities, Gina Pastore, Brooklyn Field Office Director of USCIS; Susan Quintana, New York City Field Office Director of USCIS; Lee Bowes, Acting Field Office Director for the Northeast Region of USCIS; Ken Cuccinelli, former Acting Director of USCIS; Kevin McAleenan, former Secretary of the U.S. Department of Homeland Security; Christopher Wray, Director of the Federal Bureau of Investigation; and William Barr, former Attorney General.1 Now before the Court is Defendants' Motion to Dismiss the Complaint, in which Defendants argue that the Court lacks subject matter jurisdiction because (i) Plaintiff's claims have been mooted by USCIS's subsequent adjudication of his Form N-400; and (ii) Plaintiff must exhaust his administrative remedies before he can challenge USCIS's denial of his Form N-400. For the reasons set forth below, the Court grants Defendants' motion in full.

BACKGROUND2
A. Plaintiff's Form I-485 and Form N-400 Applications

Plaintiff is a citizen of Egypt who first moved to the United States in 1998. (Compl. ¶¶ 79-80). He currently resides in Staten Island, New York.(See id., Signature Block). In 2003, Plaintiff submitted a Form I-485 application to register as a permanent resident of the United States (id. at ¶ 84), which application was denied by USCIS on February 1, 2009 (id. at ¶ 101).3 Following protracted litigation in federal court and immigration court, Plaintiff's Form I-485 application was granted on August 15, 2013, on which date Plaintiff became a lawful resident of the United States. (Id. at ¶¶ 111, 113-14).

On May 18, 2018, Plaintiff applied to become a naturalized citizen of the United States by filing a Form N-400 with USCIS. (Compl. ¶¶ 2, 116). When more than a year passed without the application being adjudicated, Plaintiff commenced this action on December 26, 2019. (See generally id.).

On February 18, 2020, USCIS conducted an interview of Plaintiff in connection with his Form N-400 application. (See Def. Br., Ex. A (Naturalization Interview Notice); see also Pl. Opp. 5). USCIS issued a denial ofPlaintiff's Form N-400 on August 31, 2020, finding that Plaintiff was not eligible for naturalization. (See Form N-400 Decision). In particular, USCIS determined that Plaintiff had failed to satisfy the residency and good moral character requirements of the INA. (See generally id. (referencing 8 U.S.C. § 1427)). In determining that Plaintiff had failed to meet the residency requirement, USCIS took notice of the fact that Plaintiff had resided in Morocco for a total of approximately 903 days between 2016 and the end of 2018. (See id. at 5-6). USCIS observed: "[w]hile it may be understandable to be overseas for some period of time ... the sheer amount of time in question without further explanation, undermines your claim that you were not residing in Morocco for over two years during the required residency period." (Id. at 5). USCIS concluded that Plaintiff had not submitted sufficient documentation to establish that he met the statutory residency requirements. (Id. at 6).

Separately, with respect to the good moral character requirement, USCIS observed that Plaintiff had received a substantial settlement in 2014 that he failed to report as income on his 2014 tax return, and, further, that he had not provided any explanation for the omission. (Form N-400 Decision 6-7). From this, USCIS concluded that Plaintiff had not met his burden of establishing that he was a "person of good moral character." (Id. at 7).

On September 1, 2020, Plaintiff appealed USCIS's denial by filing a Request for a Hearing on a Decision in Naturalization Proceedings ("Form N-336"). (See Def. Br., Ex. C (Receipt Notice for Plaintiff's Form N-336)).

B. Plaintiff's CARRP Allegations

In his Complaint, Plaintiff alleges that his Form I-485 application was denied pursuant to an "undisclosed and unauthorized" USCIS program known as the Controlled Application Review and Resolution Program ("CARRP"). (Compl. ¶¶ 1, 101, 104). He further alleges that CARRP caused USCIS's delays in resolving his Form N-400 application. (Id. at ¶ 1). Plaintiff characterizes CARRP as a program that enables USCIS to "surreptitiously blacklist[] thousands of applicants who are seeking immigration benefits" by "labeling them 'national security threats.'" (Id.). Worse yet, Plaintiff alleges that immigration officials rely upon CARRP to disregard "governing statutory criteria for certain classes of applicants," particularly applicants who either are or are perceived to be Muslim, and instead to apply "heightened, generally insurmountable criteria to anyone caught in CARRP's dragnet." (Id.). Plaintiff alleges that once USCIS identifies an applicant as raising a "CARRP-defined 'national security concern,'" that applicant is subject to rules and procedures that invariably lead USCIS either to deny the naturalization application or to delay adjudication for as long as possible. (Id. at ¶ 58).

Plaintiff alleges that USCIS has identified him as a "potential national security concern," although he notes that USCIS has not expressly informed him of this determination. (Compl. ¶ 10). According to Plaintiff, while he meets the statutory criteria to become a naturalized citizen of the United States, USCIS has used CARRP to evaluate his applications pursuant to a higher standard. (Id. at ¶ 2). At the time Plaintiff filed his Complaint, hebelieved that CARRP was preventing USCIS from moving forward with his Form N-400 application, and that CARRP would likely prompt USCIS to deny that application for "fabricated reasons." (Id.).

C. Plaintiff's Commencement of the Litigation and Defendants' Motion to Dismiss

As noted above, Plaintiff commenced this action with the filing of his Complaint on December 26, 2019. (Dkt. #1). The Court proceeded to schedule an initial pretrial conference (Dkt. #21), but subsequently adjourned the conference twice, over Plaintiff's objections, to allow USCIS time to process Plaintiff's Form N-400. (See Dkt. #23, 26). On June 18, 2020, Plaintiff submitted a request that the Court conduct a hearing on his Form N-400 application pursuant to 8 U.S.C. § 1447(b). (Dkt. #25). Defendants opposed Plaintiff's request on June 26, 2020, observing that Plaintiff's action had not been brought pursuant to Section 1447(b). (Dkt. #28). On June 29, 2020, the Court denied Plaintiff's request on the grounds that such a hearing would be "premature" while Plaintiff's application remained pending before USCIS. (Dkt. #29).

Following USCIS's August 31, 2020 denial of Plaintiff's application (see Form N-400 Decision), on September 2, 2020, Defendants filed a pre-motion letter seeking leave to dismiss the Complaint on the grounds of mootness and failure to exhaust Plaintiff's administrative remedies. (Dkt. #33). Plaintiff subsequently submitted a letter conveying his opposition to Defendants' pre-motion letter. (Dkt. #36).

On September 11, 2020, the Court held a conference regarding Defendants' anticipated motion to dismiss. (See Dkt. #38 (transcript)). During the conference, the Court set an expedited briefing schedule on Defendants' motion to dismiss, at Plaintiff's request. (Id. at 30:10-31:11). The parties adhered to the briefing schedule, pursuant to which Defendants' motion to dismiss and supporting documents were filed on October 2, 2020 (Dkt. #44-45); Plaintiff's opposition brief and supporting documents were filed on October 9, 2020 (Dkt. #47-48),4 and Defendants' reply brief was filed on October 16, 2020 (Dkt. #49). Plaintiff filed what the Court understands to be an unsolicited sur-reply on October 16, 2020. (Dkt. #51).5

On November 15, 2020, Plaintiff submitted a letter requesting that the Court expedite its decision on the pending motion to dismiss. (Dkt. #56). In his letter, Plaintiff explained that he was almost 58 years old and wished to "marry a wife from overseas" and "then apply [for] her to join [him] in the States" as it would "take time ... for a person [of his] age to have kids." (Id.). For this reason, Plaintiff indicated that he desired to expedite his naturalization proceedings to the extent possible. (Id.).

D. Plaintiff's Form N-336 Application and Related Motion Practice

As noted above, Plaintiff filed his Form N-336 application on September 1, 2020. (See Def. Br., Ex. C). On February 3, 2021, Plaintiff filed a motion seeking a Court order directing USCIS to hold a hearing on his Form N-336 application within the 180-day...

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