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Tahera Ahrary v. Susan Curda

October 2, 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. Senior United States District Judge

ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

Plaintiff moves for summary judgment on her claim for mandamus relief, in which she seeks an order compelling Defendants to adjudicate "either . . . of her two (2) pending [I-485] Applications to Adjust Permanent Resident Status." Plaintiff argues her motion should be granted because "Defendants have unreasonably delayed the adjudication of [her] [A]pplication[s] . . . ." (Pl.'s Mot. for Summ. J. ("Pl.'s Mot.") 1:11-13.) Defendants oppose Plaintiff's motion as follows: "Defendants respectfully rest upon the arguments set forth in their March 20, 2012 Motion for Summary Judgment, arguing that the delay associated with adjudication of [Plaintiff's] Form I-485 Application for Adjustment of Status . . . is not unreasonable." (Defs.' Resp. to Pl.'s Mot. ("Defs.' Resp.") 1:25-27.)*fn1

I. LEGAL STANDARD

A party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "A fact is 'material' when, under the governing substantive law, it could affect the outcome of the case." Thrifty Oil Co. v. Bank of Am. Nat. Trust & Sav. Ass'n, 322 F.3d 1039, 1046 (9th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of material fact is "genuine" when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

"'Where, as here, the moving party bears the burden of proof at trial, [Plaintiff] must come forward with evidence which would entitle [her] to a directed verdict if the evidence went uncontroverted at trial.'" Houghton v. South, 965 F.2d 1535, 1536 (9th Cir. 1992) (emphasis in original) (quoting Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991)). If [Plaintiff] satisfies [her] initial burden, "[Defendants] must set forth, by affidavit or as otherwise provided in [Federal] Rule [of Civil Procedure] 56, specific facts showing that there is a genuine issue for trial." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citation and internal quotation marks omitted).

The evidence must be viewed "in the light most favorable to [Defendants]," and "all reasonable inferences" that can be drawn from the evidence must be drawn "in [their] favor . . . ." Nunez v. Duncan, 591 F.3d 1217, 1222-23 (9th Cir. 2010).

II. UNCONTROVERTED FACTS

Plaintiff is a "native and citizen of Afghanistan who was admitted to the United States on August 14, 1999, on a J-1 non-immigrant visa." (Decl. of Julia Wilcox filed in Supp. of Defs.' Mot. for Summ. J. ("Wilcox Decl.") ¶ 3, ECF No. 11-2.) "Plaintiff was granted asylum by the . . . Immigration and Naturalization Service (["INS"]) on January 13, 2000. Id. After one year in the United States in asylum status, an alien may apply for adjustment of status to that of a permanent resident . . . by filing a Form I-485 [application]. . . ." Id. at ¶ 4. Plaintiff applied for asylum-based adjustment of status on January 30, 2001. Id. That Application remains pending. Id. at ¶ 30.

Background and security checks are not responsible for the delay in adjudicating Plaintiff's Application; the FBI has completed Plaintiff's name and background checks. Id. at ¶¶ 8-11. "Plaintiff's

[A]pplication for adjustment of status remains pending because in the years since she was granted asylum, legislation has been passed that affects the adjudication of her [A]pplication for adjustments of status[,]" specifically including "the USA PATRIOT Act . . . ; the REAL ID Act . . . ; and the Consolidated Appropriations Act of 2008 (CAA)[.]" Id. at ¶ 12.

Plaintiff's asylum claim included information that she was an active supporter of the Mujahidin in the Afghanistan insurgency against the Soviet occupation and interim government. Id. at ¶ 13. Plaintiff's asylum claim indicates that, "beginning in April 1978, she helped the Mujahidin by distributing pamphlets, and by giving financial support to the organization." Id. The Mujahidin is currently designated as a Tier III terrorist organization under 8 U.S.C. 1182(a)(3)(B)(vi)(III). Id. Defendants contend Plaintiff's involvement with the Mujahidin renders her inadmissible for a change in status. Id. at 14.

Under the Immigration & Nationality Act ("INA"), "the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, and the Secretary of State, in consultation with the Secretary of Homeland Security and the Attorney General, have the discretionary authority to exempt certain terrorist-related inadmissibility grounds." Id. at 15. "In December 2007, the CAA amended the Secretary of Homeland Security's authority to exempt certain terrorist-related inadmissibility grounds." Id. at ¶ 18. "Specifically, the CAA expanded the discretionary authority of the Secretary of Homeland Security and the Secretary of State to exempt terrorist-related inadmissibility grounds as they relate to individual aliens, and to exempt certain . . . Tier III terrorist organizations . . . ." Id.

The procedure for exercising the Secretary of Homeland Security's discretionary exemption authority is "intentionally deliberative." Id. at ¶ 26. "Various factors, including national security, humanitarian, and foreign policy concerns, must be weighed carefully before a decision is made." Id.

On March 26, 2008, Defendant United States Citizenship and Immigration Services ("USCIS") issued a memorandum concerning the adjudication of cases involving terrorist-related grounds of inadmissibility. Id. at ¶ 27. "[T]he memorandum instructed that adjudicators should withhold adjudication of cases that could benefit from the Secretary's expanded discretionary authority . . . . " Id. "The adjudication of Plaintiff's [A]pplication is currently being withheld in accordance with [that] agency policy." Id. ¶ 30.

Defendants indicate that "[i]f USCIS were ordered to complete the adjudication of Plaintiff's [A]pplication for adjustment of status, the case would likely be denied without prejudice to allow plaintiff to re-file." Id. Defendants have also indicated that they "intend[] to adjudicate Plaintiff's [A]pplication . . . at such time as an exercise of the discretionary exemption authority that would apply to Plaintiff becomes available. . . ." Id. at ¶ 31.

On August 23, 2012, Defendants advised the Court that "the Secretary of the Department of Homeland Security signed a new exercise of her exemption authority . . . relating to the terrorism-related grounds of inadmissibility." (Defs.' Notice of Publication of New Exemption, ECF No. 23.) Defendants filed the Declaration of Francis J. Doyle, a Department of Homeland Security employee, in connection with the August 23rd Notice. Ms. Doyle declares that "USCIS has not yet determined whether individuals affiliated with the [Mujahidin], such as the Plaintiff, will be eligible ...


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