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Tahera Ahrary v. Susan Curda

May 8, 2012

TAHERA AHRARY, PLAINTIFF,
v.
SUSAN CURDA, OFFICER IN CHARGE, SACRAMENTO OFFICE, U.S. CITIZENSHIP AND IMMIGRATION SERVICES; ALEJANDRO N. MAYORKAS, DIRECTOR, BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPT. OF HOMELAND SECURITY; JANET NAPOLITANO, U.S. SECRETARY OF HOMELAND SECURITY; ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL; ROBERT S. MUELLER, III, DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION, DEFENDANTS.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER*fn1

Defendants move for summary judgment on Plaintiff's claim for mandamus relief compelling Defendants to adjudicate her I-485 application to adjust status to permanent residency, arguing "the delay of processing such a complex adjustment case involving terrorism is, as a matter of law, not unreasonable." (Defs.' Mot. 3:16-19.) Specifically, Defendants argue they "have yet to reach final adjudication because of the series of legislative and policy changes that have affected [Plaintiff's] admissibility." Id. 6:4-5. Plaintiff opposes the motion.

I. LEGAL STANDARD

When the defendant is the moving party and is seeking summary judgment on one or more of a plaintiff's claims,

[the defendant] has both the initial burden of production and the ultimate burden of persuasion on [the motion]. In order to carry its burden of production, the [defendant] must either produce evidence negating an essential element of the [plaintiff's claim] or show that the [plaintiff] does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. In order to carry its ultimate burden of persuasion on the motion, the [defendant] must persuade the court that there is no genuine issue of material fact.

Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000) (citations omitted). Defendants' motion is based on negating an essential element of Plaintiff's claim for mandamus relief, specifically, that the delay in processing her application is unreasonable. Since Defendants do not carry their initial burden of production, however, the Court will not reach the ultimate burden of persuasion.

II. UNCONTROVERTED FACTS

Local Rule 260(b) requires:

Any party opposing a motion for summary judgment or summary adjudication [must] reproduce the itemized facts in the [moving party's] Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are disputed, including with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon in support of that denial.

If the non-movant does not "specifically . . . [controvert duly supported] facts identified in the [movant's] statement of undisputed facts," the non-movant "is deemed to have admitted the validity of the facts contained in the [movant's] statement." Beard v. Banks, 548 U.S. 521, 527 (2006).

Plaintiff does not specifically controvert the facts in Defendants statement of undisputed facts; therefore, the following facts are uncontroverted for the purposes of Defendants' motion. Plaintiff "was granted asylum on January 13, 2000[; and a] year later, [she] applied for asylum-based adjustment of status pursuant to 8 U.S.C. § 1159(b)." (Defs.' Statement of Undisputed Facts ("SUF") ¶ 1.) "On December 22, 2010, [Plaintiff] filed a second adjustment of status application based on her marriage to a United States citizen." Id. ¶ 2.

U.S. Citizenship and Immigration Services ("USCIS") sent Plaintiff a letter dated February 16, 2011, stating as follows:

Your case is on hold because you appear to be inadmissible under [§] 212(a)(3)(B) of the [Immigration and Naturalization Act ("INA")], and USCIS currently has no authority not to apply the inadmissibility ground(s) to which you appear to be subject. Rather than denying your application based on inadmissibility, we are holding adjudication in abeyance while the Department of Homeland Security considers additional exercises of the Secretary of Homeland Security's discretionary exemption authority. Such an exercise of the exemption authority might allow us to approve your case.

(Compl. Ex. C.) Plaintiff's "application stated that beginning in 1978, she assisted the Mujadin by distributing pamphlets and giving financial support." (Defs.' SUF ¶ 5.) Defendants state "USCIS determined that the Mujahidin meets the definition of a Tier III undesignated terrorist organization under 8 U.S.C. § 1182(a)(3)(B)(vi)(III)." Id. ¶ 6. Further, Defendants state "[i]f required to complete adjudication of [Plaintiff's] applications ...


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