Singh v. Citizenship
| Decision Date | 19 April 2011 |
| Docket Number | 10 C 8288 |
| Parties | SATWINDER SINGH, Plaintiff, v. U.S. CITIZENSHIP AND IMMIGRATION SERVICES and KENNETH MADSEN, DIRECTOR, USCIS CHICAGO ASYLUM OFFICE,Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
Plaintiff Satwinder Singh seeks judicial review of the decision of defendants U.S. Citizenship and Immigration Services ("USCIS") and USCIS Chicago Asylum Office Director Kenneth Madsen to terminate plaintiffs asylum status. Before the Court is defendants' motion to dismiss. For the reasons stated below, the motion to dismiss is granted in part and denied in part.
Plaintiff is an Indian citizen. On March 5, 1996, USCIS's predecessor, the Immigration and Naturalization Service, granted plaintiff political asylum in the United States.
On November 4, 2009, defendants issued a Notice of Intent to Terminate ("NOIT") plaintiffs asylum. According to the complaint, the NOIT alleged:
USCIS has received evidence that indicates there was fraud in your application for asylum at the time it was granted. Evidence has come to light indicating that you testified to events that did not occur while you lived in India and that testimony was the basis for your grant of asylum. Thus there are questions raised as to the veracity of the statements you made in regard to you [sic] claim forasylum, and these misrepresentations are material to your claim for asylum because they directly relate to whether you suffered past persecution and whether you are likely to suffer harm in the future. In order to give you the opportunity to respond to this adverse information, we have scheduled a termination interview at least thirty (30) days after the date of this notice to give you sufficient time to prepare for the interview.
On December 2, 2009, plaintiff's attorney sent a letter to defendants in which he asked to see the evidence on which the NOIT was based, and requested that the USCIS postpone the interview until he was allowed to inspect the evidence. Plaintiffs attorney also sent defendants an affidavit, in which plaintiff stated that he had provided truthful testimony in support of his asylum application, and that he did not know what evidence defendants were referencing in the NOIT. Defendants did not respond to plaintiffs attorney's request.
On December 8, 2009, an asylum officer interviewed plaintiff. According to the complaint, during the interview the asylum officer asked plaintiff why he may have previously given a statement that he was in the United States during periods in which his asylum application stated that he was in India. Plaintiff denied any knowledge of having provided such a statement to the USCIS. Plaintiff alleges that the asylum officer did not provide plaintiff or his attorney with a copy of the alleged statement or allow them to review it; nor did he provide them with an opportunity to submit evidence to rebut this information.
On July 22, 2010, defendants terminated plaintiff's asylum status on the basis that plaintiff had failed to establish that he was living in India at the time of his alleged persecution, and therefore that he had failed to establish that he was eligible for asylum at the time it was granted. The termination notice enclosed a notice to appear, which placed plaintiff in removal proceedings. The removal proceedings remain pending.
Plaintiff filed this action seeking review of defendants' decision to terminate his asylumstatus. Plaintiff alleges in his complaint that defendants' actions violated the Administrative Procedure Act (Count I), his due process rights (Count II), and his First Amendment rights (Count III). Defendants move to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b)(1) or, in the alternative, Rule 12(b)(6).
Defendants first argue that this Court lacks subject matter jurisdiction to review their decision to terminate plaintiffs asylum status because that decision was not a final action. Accordingly, they argue, the case should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1).
This Court has subject matter jurisdiction under the Administrative Procedure Act ("APA") to review only "final agency action." See 5 U.S.C. § 704. An agency action is "final" if it is: (1) "the 'consummation' of the agency's decisionmaking process," that is, "not... of a merely tentative or interlocutory nature," and (2) is an action "by which 'rights or obligations have been determined, ' or from which 'legal consequences will flow.'" W. III. Home Health Care, Inc. v. Herman, 150 F.3d 659, 662 (7th Cir. 1998) (quoting Bennett v. Spear, 520 U.S. 154, 177-78 (1997)). Courts follow "a pragmatic, practical test for the finality of administrative decisions." Id. As the party asserting jurisdiction, plaintiff bears the burden of proof on this issue. See United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003).
Defendants argue that their decision to terminate plaintiff's asylum status was not a final action, but rather was only the first step in plaintiffs removal proceedings, which remainongoing. Defendants note that the commencement of removal proceedings is mandatory when an alien's asylum status is terminated. See 8 U.S.C. § 1158(c)(3). Defendants agree that plaintiff can renew his asylum claim in the removal proceedings.1 See Qureshi v. Holder, No. 10-1861, 2010 WL 5141877, at *2 (E.D. La. Dec. 10, 2010) (). In the removal proceeding, plaintiff is entitled to a full evidentiary hearing, including "a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien's own behalf, and to cross-examine witnesses presented by the Government." See 8 U.S.C. § 1229a(b)(4). If plaintiff is ordered removed, he may appeal the decision to the Board of Immigration Appeals ("BIA"). 8 C.F.R. § 1003.1(b). Plaintiff may then file a petition for review in the Court of Appeals of an adverse decision by the BIA. 8 U.S.C. §§ 1252(a)(5) & (b)(9). Thus, according to defendants, their decision was not the consummation of the decisionmaking process, but only the beginning.
In addition, defendants argue that their termination decision did not permanently determine plaintiffs rights or obligations. First, they observe that plaintiffs asylum status ultimately may be restored in the removal proceedings. In addition, defendants contend that any other effects of their termination decision are inconsequential because they are temporary. For example, defendants acknowledge that plaintiff lost his work authorization as a result of the termination of his asylum status, but argue that this loss does not constitute a permanent determination of his rights because plaintiff may reapply for work authorization after his new asylum claim has been pending in the removal proceedings for 180 days. See 8 U.S.C. §1158(d)(2); 8 C.F.R. § 208.7(a)(1).
Plaintiff responds that the termination decision is a final action because the termination proceeding, conducted by the USCIS (an agency under the Department of Homeland Security), was separate from the removal proceeding, which is conducted by a branch of the Department of Justice in the immigration court. Plaintiff acknowledges that he can file a new application for asylum in the removal proceeding, but notes that such an application is not an appeal of the termination decision, and requires him to prove anew that he is entitled to asylum. Plaintiff argues that it will be more difficult for him to establish now that he is still at risk of persecution than it would be to challenge defendants' decision to terminate his asylum. Plaintiff also argues that the termination of his asylum status had immediate legal consequences for him: he states that he became ineligible for work authorization for at least 180 days, and that he is not permitted to travel outside the United States.
In support of their argument that their termination decision was not a final action, defendants cite district court cases from the Eastern District of Louisiana and the Northern District of California. See Qureshi v. Holder, No. 10-1861, 2010 WL 5141877 (E.D. La. Dec. 10, 2010); Gill v. Bardini, No. C-08-05190, 2010 WL 761307 (N.D. Cal. Mar. 3, 2010). In Qureshi, for example, the plaintiff and his family's application for asylum was granted in 2000 and subsequently terminated in 2009, based on a finding that the plaintiff had participated in the persecution of another person on account of that person's nationality and political opinion. Qureshi, 2010 WL 5141877, at *1. Although removal proceedings were ongoing, the plaintiff sought judicial review of the termination decision in the district court. Id. The court rejected the plaintiff's argument that the termination and removal proceedings were separate and independentproceedings, and noted that the plaintiff could reassert his asylum application in the removal proceeding. Id. at *5. The court also rejected the plaintiffs argument that the decision was final because the plaintiff lost his employment authorization as a result of the termination of his asylum status, on the basis that the plaintiff could reapply for employment authorization while his new asylum application was pending. Id. at *7. The court concluded that the termination decision was not a final action, and dismissed the plaintiffs claims for lack of subject matter jurisdiction. Id.
As defendants recognize, at least one other district court case takes the opposite view. See Sidhu v. Bardini, No. C 08-05350, 2009 WL 1626381 (N.D. Cal. June 10, 2009). On similar facts as those presented here, the Sidhu court concluded that the USCIS's termination decision was a final action because: (1) the plaintiff had no right to appeal that decision; (2) the...
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