ORDER ON DEFENDANTS' MOTION TO DISMISS OR FOR SUMMARY JUDGMENT AND ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (Doc. Nos. 12, 16)
This is an immigration case. Plaintiff Armjeet Singh ("Singh") has filed suit in this Court and seeks relief pursuant to 28 U.S.C. §§ 1331, 1361, and 1651 and 5 U.S.C. § 701 et seq. Specifically, Singh seeks to compel Defendants, who are all officials of the United States Government, to adjudicate Singh's I-485 application for an adjustment of his immigration status. Defendants have filed motions to dismiss under Rules 12(b)(1) and 12(b)(6), as well as a motion for summary judgment. Plaintiff has filed a motion for summary judgment. For the reasons that follow, Plaintiffs' motion will be denied, Defendants' motions to dismiss will be denied, Defendants' motion for summary judgment will be granted, and this case will close.
Singh, who is a native and citizen of India, resides in this judicial district and is applying for lawful permanent residence in the United States. See PUMF 1; DUMF 1. Prior to April 15, 2002, Singh filed a petition pursuant to 8 U.S.C. § 1158(a) seeking asylum in the United States for persecution suffered in India. PUMF 2. On April 1, 2002, an Immigration Judge ("IJ") issued a decision that denied Singh's Application for Asylum. PUMF 3. On October 28, 2003, the Board of Immigration Appeals ("BIA") denied Singh's appeal by affirming the IJ's decision. PUMF 4.
On May 23, 2005, the Ninth Circuit Court of Appeals found error and remanded the matter for further proceedings. See Singh v. Gonzales, 133 Fed. Appx. 399, 401 (9th Cir. 2005).
On March 12, 2007, the IJ approved Singh's Application for Asylum. See DUMF 2;
PUMF 8. The Government waived its right to appeal the IJ's grant of asylum. See PUMF 8.
On June 10, 2008, Singh filed an I-485 application for adjustment of status with Defendant United States Citizenship and Immigration Services ("USCIS") seeking to adjust his status to lawful permanent resident. DUMF 3. Singh's I-485 application remains pending with USCIS. DUMF 4. The Federal Bureau of Investigation has completed Singh's name and background checks, and background and security checks are not causing the delay in adjudicating Singh's I-485 application. DUMF 6. Singh's I-485 application remains pending based upon USCIS's finding that he is inadmissible for engaging in terrorist activities, as defined by the Immigration and Nationality Act, as amended, 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(dd).*fn2 DUMF 5.*fn3 Singh's asylum claim indicated that he was a supporter of, and provided food and shelter to members of, the militant group Khalistan Commando Force ("KCF") from June 1993 to late 1996. DUMF 7.*fn4 Singh's asylum claim also indicated that he knew his grandfather was aiding members of the KCF since the early 1990's, and that Singh had been at his grandfather's home when KCF militants used the house for shelter. DUMF 8. However, Singh has never admitted to being in his grandfather's house with known KCF members. See Response to DUMF 8. USCIS has concluded that the violent activities and objectives of the KCF bring the group within the definition of an undesignated terrorist organization, commonly referred to as a "Tier III" organization, as described in 8 U.S.C. § 1182(a)(3)(B)(vi)(III). DUMF 9.
Singh's I-485 application remains pending adjudication due to the evidence of inadmissibility and the fact that, in the years since Singh was granted asylum, Congress passed legislation that affects the adjudication of his application. DUMF 10. This legislation includes the REAL ID Act of May 2005, which inter alia amended the definition of the phrase "engage in terrorist activity," and expanded on the "material support" grounds and definition of "terrorist organization." See DUMF 11. The legislation also includes the Consolidated Appropriations Act of 2008 ("CAA") (codified in part at 8 U.S.C. § 1182(d)(3)(B)(i)), which inter alia amended the Secretary of Homeland Security's ("the Secretary") authority to exempt certain terrorist-related inadmissibility grounds. See id. Specifically, the Secretary, in consultation with the Secretary of State and the Attorney General, has discretionary authority to exempt certain Tier III groups or individuals when appropriate. DUMF 12. A series of USCIS policy memoranda ("Policy Memoranda") set forth procedures for holding and processing applications that may potentially benefit from such exemption authority. Id. To date, the KCF is not included on the current list of exempted groups. Id.
The adjudication of Singh's I-485 is currently being withheld in accordance with agency policy pending future exemption-related guidance. DUMF 14. According to USCIS, if it were ordered to complete the adjudication of Singh's application, his application would likely be denied without prejudice to permit him an opportunity to re-file. See id. There are no other impediments to the government deciding the I-485 application. PUMF 13.
Singh has been granted several work permits and travel documents. DUMF 15. Singh's most recent and current work permit is valid through May 10, 2013. Id. Singh's most recent travel authorization expired on April 10, 2009. Id. There is nothing to indicate that, if Singh applies for either work or travel authorization in the future, his applications will be denied. Id.
Since the Ninth Circuit's opinion in May 2005, the Government has presented no new or supplemental evidence that shows Singh personally aided or assisted terrorists, or that would change Singh's eligibility for an adjustment of status. See PUMF 9.
I. Defendants' Rule 12(b)(1) Motion To Dismiss
Defendants argue that 8 U.S.C. § 1252(a)(2)(B)(ii) divests the Court of jurisdiction to review USCIS's discretionary decision to place Singh's I-485 application on adjudicatory hold. That section strips the Court of the ability to review discretionary decisions in the immigration context. 8 U.S.C. § 1159 governs adjustment of status for asylees, and § 1159(b) expressly grants discretion to the Secretary to adjust an asylee's status. This is not a case where adjustment is delayed due to a failure to act, but is instead a delay due to USCIS's affirmative and discretionary decision to put Singh's adjustment application on an adjudicatory hold pending a potential exemption. The decision to hold the application in abeyance is action, and a review of that action would entail a prohibited review of an exercise of discretion.
In a supplemental response, Singh cites Ahrary v. Curda, 2012 U.S. Dist. LEXIS 143504 (E.D. Cal. Oct. 3, 3012), and argues that the Court may compel action by the Government in adjudicating the I-485 petition. Otherwise, Singh has not responded to Defendants' argument.
It is a fundamental precept that federal courts are courts of limited jurisdiction. Vacek v. United States Postal Serv., 447 F.3d 1248, 1250 (9th Cir. 2006). "It is presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); Vacek, 447 F.3d at 1250. Federal Rules of Civil Procedure 12(b)(1) allows for a motion to dismiss based on lack of subject matter jurisdiction. See Fed. R. Civ. Pro. 12(b)(1). Rule 12(b)(1) motions may be either facial, where the inquiry is confined to the allegations in the complaint, or factual, where the court is permitted to look beyond the complaint to extrinsic evidence. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004); Safe Air For Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004); Savage v. Glendale Union High School Dist. No. 205, 343 F.3d 1036, 1040 n.2 (9th Cir. 2003); White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). When a defendant challenges jurisdiction "facially," all material allegations in the complaint are assumed true, and the question for the court is whether the lack of federal jurisdiction appears from the face of the pleading itself. See Wolfe, 392 F.3d at 362; see also Meyer, 373 F.3d at 1039. When a defendant makes a factual challenge "by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Meyer, 373 F.3d at 1039; Savage, 343 F.3d at 1039 n.2. The court need not presume the truthfulness of the plaintiff's allegations under a factual attack. Meyer, 373 F.3d at 1039; White, 227 F.3d at 1242.
8 U.S.C. § 1252(a)(2)(B)(ii) provides in part that no court shall have jurisdiction to review any "decisions or action of the . . . Secretary of Homeland Security the authority for which is specified under this title to be in the discretion of the . . . Secretary of Homeland Security . . . ." There is a split among the district courts as to whether § 1252(a)(2)(B)(ii) strips courts of jurisdiction to compel action on I-485 applications that are being held in abeyance pursuant to the Policy Memoranda regarding Tier III terrorist organizations. Khalfallah v. Holder, 2011 U.S. Dist. LEXIS 119366, *9-*10 (N.D. Tex. Sept. 9, 2011). Some courts hold that review is not permitted pursuant to § 1252(a)(2)(B)(ii) because the decision to hold an application in abeyance is a discretionary decision or action by the USCIS. E.g. Nuredini v. Napolitano, 2012 U.S. Dist. LEXIS 87923, *8-*9 (N.D. Ill. June 26, 2012); Alghadbawi v. Napolitano, 2011 U.S. Dist. LEXIS 106355, *8-*9 (S.D. Ind. Sept. 19, 2011); Khalfallah, 2011 U.S. Dist. LEXIS 119366 at *10; Seydi v. United States Citizenship & Immigration Servs., 779 F.Supp.2d 714, 719 (E.D. Mich. 2011); Singh v. Napolitano, 710 F.Supp.2d 123, 131-32 (D. D.C. 2010). Other courts reason that, even considering the Policy Memoranda, there is a non-discretionary mandatory duty to act on an I-485 application, and there is no discretion to indefinitely withhold a ruling on an I-485. E.g. Irshad v. Napolitano, 2012 U.S. Dist. LEXIS 142459, *16-*18 (D. Neb. Oct. 2, 2012); Beyene v. Napolitano, 2012 U.S. Dist. LEXIS 97751, *7-*9 (N.D. Cal. July 13, 2012); Tewolde v. Wiles, 2012 U.S. Dist. LEXIS 30197, *9-*10 (W.D. Wash. Mar. 7, 2012); Mugomoke v. Curda, 2012 U.S. Dist. LEXIS 4474, *12-*15 (E.D. Cal. Jan. 12, 2012); Beshir v. Holder, 853 F.Supp.2d 1, 8 (D. D.C. 2011); Al Rifahe v. Mayorkas, 776 F.Supp.2d 927, 932 (D. Minn. 2011); Khan v. Scharfen, 2009 U.S. Dist. LEXIS 28948, *11-*15 (N.D. Cal. Apr. 6, 2009).
After consideration, the Court agrees with and adopts the rationale of the latter cases that § 1252(a)(2)(B)(ii) does divest the it of jurisdiction in this situation. This Court has jurisdiction to review claims that USCIS has unreasonably delayed a decision on an I-485 application. See Irshad, 2012 U.S. Dist. LEXIS 142459 at *16-*18; Beyene, 2012 U.S. Dist. LEXIS 97751 at *7-*9; Tewolde, 2012 U.S. Dist. LEXIS 30197 at *9-*10; Mugomoke, 2012 U.S. Dist. LEXIS 4474 at *12-*15; Beshir, 853 F.Supp.2d at 8; Al Rifahe, 776 F.Supp.2d at 932; Khan, 2009 U.S. Dist. LEXIS 28948 at *11-*15. However, as the District of Nebraska has emphasized: "This is not to say that [USCIS] must process I-485 applications in a particular way or within a specific time frame . . . [, and the Court] does not mean to suggest that the USCIS lacks the discretion to hold an application 'in abeyance' [pursuant to the Policy Memoranda] for a reasonable period." Irshad, 2012 U.S. Dist. LEXIS 142459 at *17. The Court is merely holding that it has the jurisdiction to determine whether a delay in ruling on an I-485 application is reasonable. See id.
Defendants do not make any other arguments that question subject matter jurisdiction. Because § 1252(a)(2)(B)(ii) does not apply, and there appears to be no other basis for doubting the Court's subject matter jurisdiction, Defendants' Rule 12(b)(1) motion will be denied.
II. Defendant's Rule 12(b)(6) Motion ...