Seydi v. United States Citizenship

• Decision Date: 28 March 2011
• Docket Number: Case No. 10–10925.
• Citation: 779 F.Supp.2d 714
• Parties: Amaro Kecoye SEYDI, Plaintiff,v.UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

779 F.Supp.2d 714

Amaro Kecoye SEYDI, Plaintiff,

v.UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants.

Case No. 10–10925.

United States District Court, E.D. Michigan, Southern Division.

March 28, 2011.

Tamara A. French, Tamara A. French, Attorney at Law, Detroit, MI, for Plaintiff.Derri T. Thomas, U.S. Attorney's Office, Detroit, MI, William C. Silvis, United States Department of Justice, Washington, DC, for Defendants.

OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

GERALD E. ROSEN, Chief Judge.

I. INTRODUCTION

On March 9, 2010, Plaintiff Amaro Kecoye Seydi filed a complaint for a writ of mandamus, seeking to compel the Defendant federal agency, the United States Citizenship and Immigration Services (“USCIS”), and the Defendant federal officials to act upon Plaintiff's application to adjust his status. As grounds for the Court's exercise of subject matter jurisdiction, Plaintiff cites a federal statute conferring jurisdiction “of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff,” 28 U.S.C. § 1361, and he further appeals to his entitlement to due process of law under the Fifth Amendment to the U.S. Constitution, as well as a right of judicial review of federal agency action, see 5 U.S.C. § 702.

In lieu of answering the complaint, Defendants have filed a motion to dismiss for lack of subject matter jurisdiction or, alternatively, for summary judgment in their favor. In challenging the Court's subject matter jurisdiction, Defendants cite a jurisdiction–stripping provision of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1252(a)(2)(B)(ii), that largely forecloses judicial review of matters committed to the “discretion of the Attorney General or the Secretary of Homeland Security,” and they argue that the pace of adjudication of Plaintiff's application to adjust status is just such a matter. Alternatively, Defendants argue that the delay in the adjudication of this application is reasonable as a matter of law. Plaintiff has filed a response in opposition to Defendants' motion as well as a cross-motion for summary judgment, arguing that the delay in the resolution of his application to adjust status has been unreasonable as a matter of law.

Both Defendants' and Plaintiff's motions have been fully briefed by the parties. Having reviewed these cross-motions, their accompanying briefs and exhibits, and the record as whole, the Court finds that the relevant allegations, facts, and legal arguments are adequately presented in these written submissions, and that oral argument would not aid the decisional process. Accordingly, the Court will decide the parties' motions “on the briefs.” See Local Rule 7.1(f)(2), United States District Court, Eastern District of Michigan. For the reasons set forth below, the Court finds that it lacks jurisdiction over this case, and that Defendants' motion to dismiss must be granted.

II. FACTUAL AND PROCEDURAL BACKGROUND

The following recitation of facts derives largely from the allegations of Plaintiff's complaint and from information gleaned from the exhibits accompanying his complaint, as supplemented by procedural and legal developments outlined in the exhibits accompanying Defendants' motion. Plaintiff Amaro Kecoye Seydi is a 58–year–old male who is a native and citizen of Senegal, and who currently resides in Detroit, Michigan. In the late 1990s, he arrived in the United States on a tourist visa. Shortly thereafter, Plaintiff applied for asylum, and this application was granted by an immigration judge on March 31, 2004.

In November of 2005, Plaintiff filed a Form I–485 application to adjust his status to that of a lawful permanent resident. As of the date this suit was filed in March of 2010, this application remains pending. During this period of delay, Plaintiff has made several inquiries of the Defendant USCIS regarding the status of his application. In each instance, he was advised that his application was still under review, and he occasionally was informed more specifically that his application was on hold because he appeared to be inadmissible under § 212(a)(3)(B) of the INA, 8 U.S.C. § 1182(a)(3)(B), and because the USCIS was awaiting a decision by the Department of Homeland Security (“DHS”) whether to permit a discretionary exemption from this threshold determination of inadmissibility.

As suggested in these responses to Plaintiff's inquiries, the disposition of Plaintiff's I–485 application has been impacted by recent developments in the law. Under 8 U.S.C. § 1159(b)(5), the USCIS must determine an applicant's admissibility in adjudicating an application for adjustment of status. Under 8 U.S.C. § 1182(a)(3)(B), in turn, an applicant is inadmissible if he has engaged in terrorist activity within the meaning of this statute. According to the declaration of USCIS Assistant Director Evelyn Martin, the information included in Plaintiff's application for asylum indicates that he is inadmissible under § 1182(a)(3)(B) because, from 1980 until he came to the United States in 1999, he provided material support to the Mouvement des Forces Democratiques de le Casamance (“MFDC”), an organization that meets the definition of a “Tier III” terrorist organization under § 1182(a)(3)(B)(vi)(III).¹ ( See Defendants' Motion, Ex. 1, Martin Decl. at ¶ 11.) Consequently, if the USCIS were to make a final decision on Plaintiff's application for adjustment of status, it appears all but certain that the application would be denied. ( See id. at ¶ 23.)

However, in the Consolidated Appropriations Act of 2008 (“CAA”), Pub. L. No. 110–161, 121 Stat. 1844, which was signed into law on December 26, 2007, the Secretary of the DHS was given additional discretionary authority to grant exemptions from the terrorist-related inadmissibility grounds relating to “Tier III” terrorist organizations. ( See id. at ¶ 26.) In light of this enactment, the Deputy Director of USCIS issued a policy memorandum on March 26, 2008, explaining that the Secretary of the DHS has not yet exercised the authority conferred under the CAA, and directing adjudicators to withhold their decisions in cases where the applicants might benefit from the expanded discretionary authority granted to the Secretary under this enactment. ( See id. at ¶ 15; see also Defendants' Motion, Ex. 2, 3/26/2008 Memorandum.)

The adjudication of Plaintiff's application has been held in abeyance pursuant to the statement of USCIS policy set forth in this memorandum, and Assistant Director Martin states in her declaration that the USCIS is “actively .. consider[ing]” how to proceed with cases, such as Plaintiff's, that remain on hold in accordance with agency policy. ( See Martin Decl. at ¶¶ 21–22.) ² Through the present action, Plaintiff challenges this continued delay, seeking a writ of mandamus that would compel the Defendant agency and immigration officials to act upon his application for an adjustment of status.

III. ANALYSIS

Although Plaintiff seeks to compel Defendants to adjudicate his pending application to adjust his status, he must establish as a threshold matter that the Court has subject matter jurisdiction over this suit. In their pending motion, Defendants argue that this jurisdiction is lacking. The Court agrees.

As Defendants observe in their motion, Congress has acted a number of times over the years to narrow the scope of judicial review of immigration-related decisions. As pertinent here, section 242 of the Immigration and Nationality Act (“INA”) now includes a provision divesting the federal courts of jurisdiction to review any “decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security.” 8 U.S.C. § 1252(a)(2)(B)(ii). Under this provision, then, the Court cannot exercise jurisdiction over the present action if the handling of Plaintiff's application is properly viewed as a “decision or action” by the Secretary of Homeland Security ³ on a matter committed to her discretion under the subchapter of the INA of which § 1252 is a part. ⁴

In a recent decision issued shortly after Plaintiff commenced this action, Judge Walton of the District Court for the District of Columbia held under substantially similar facts that the federal district courts lack subject matter jurisdiction to review decisions by the USCIS to hold applications for adjustment of status in abeyance pursuant to the agency's March 26, 2008 policy memorandum. See Singh v. Napolitano, 710 F.Supp.2d 123 (D.D.C.2010). In that case, as here, plaintiff Amrit Pal Singh had successfully applied for asylum, but this application revealed that he had been a member of and provided material support to groups that were considered to be Tier II and Tier III terrorist organizations. In light of this discovery, the USCIS declined to adjudicate Singh's application for an adjustment of status, with the result that this application had remained pending for almost nine years by the time Singh brought suit in federal district court. The defendant government officials argued that the court was precluded under § 1252(a)(2)(B)(ii) from exercising jurisdiction over Singh's suit, and the court agreed. See Singh, 710 F.Supp.2d at 129–32.

In so ruling, the court addressed (and rejected) each of the contentions advanced by Plaintiff here as to why § 1252(a)(2)(B)(ii) should not foreclose judicial review of a USCIS decision to hold an application for adjustment of status in abeyance. First, while Plaintiff recognizes that the Secretary of the DHS has the discretion under 8 U.S.C. § 1159(b) to grant (or deny) applications for adjustment of status, he argues that nothing in this provision (or elsewhere in the INA) grants the Secretary the discretion “not to decide applications at all,” or...