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Islam v. Heinauer

United States District Court, N.D. California, San Francisco Division

March 7, 2014

F. GERARD HEINAUER, Director, United States Citizenship and Immigration Services Nebraska Service Center, et al., Defendants

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[Copyrighted Material Omitted]

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For Mohammad Sher Islam, Plaintiff: Anna L Benvenue, LEAD ATTORNEY, Law Offices of Robert B. Jobe, San Francisco, CA; Robert B. Jobe, LEAD ATTORNEY, Law Office of Robert B. Jobe, San Francisco, CA.

For F. Gerard Heinauer, Director, USCIS Nebraska Service Center, Director Alejandro Mayorkas, USCIS, U.S. Citizenship and Immigration Services, Secretary Janet Napolitano, USDHS, U.S. Department of Homeland Security, Attorney General Eric H. Holder, Jr., Defendants: Stacey Ilene Young, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC.

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In this immigration mandamus action, plaintiff Mohammed Sher Islam seeks an order compelling the government to adjudicate his Form I-485 Application for adjustment of citizenship status. The government moves to dismiss, and both parties move for summary judgment. For the reasons set forth below, both of defendants' motions are denied. Further, because Islam has endured an unreasonable delay in the processing of his I-485 petition, his motion for summary judgment is granted. The government must process Islam's application forthwith.


Plaintiff Mohammad Sher Islam is a native and citizen of Pakistan who entered the United States in April of 2000. (Compl., ECF No. 1 at ¶ 6; Decl. of Gareth R. Canaan, ECF No. 13-1 at ¶ 3). Islam applied for asylum on January 29, 2001 with the Immigration and Naturalization Service (INS). An Immigration Judge granted his application on March 27, 2007. Id. On or about May 27, 2008, Islam filed a Form I-485 Application with the U.S. Citizenship and Immigration Services (USCIS) to adjust his immigration status to that of a lawful permanent resident. (Compl. at ¶ 6; Canaan Decl. at ¶ 5). That application is still pending. Id.

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When an alien applies for adjustment of status, USCIS conducts several forms of security and background checks. (Canaan Decl. at ¶ 7). These procedures are not, however, causing any delay in adjudication of Islam's Form I-485. Rather, defendants maintain that because Islam's application would be denied if adjudication went forward, his petition has been placed on hold to determine whether he might benefit from certain discretionary exemptions. Id. at ¶ ¶ 21, 30. Defendants claim Islam is not admissible to the United States under provisions of the Immigration & Nationality Act (INA), because, among other things, he admitted to having been a member of Muhajir Qaumiwa Movement -- Altaf Faction (MQM--A), a " Tier III" terrorist organization. See 8 U.S.C. 1182(a)(3)(B)(vi)(III); (Canaan Decl. at ¶ ¶ 12--17).[1]

On December 26, 2007, the Consolidated Appropriations Act, 2008 (CAA) expanded the discretionary authority of the Secretary of the Department of Homeland Security (DHS) " to exempt certain terrorist-related inadmissibility grounds as they relate to individual aliens," and to exempt certain Tier III terrorist organizations from being considered terrorist organizations. (Canaan Decl. at ¶ 18). On March 26, 2008, the USCIS issued a memorandum instructing adjudicators to withhold adjudication of cases that could benefit from the Secretary's expanded authority under the CAA. Id. at 20. Pursuant to this policy, Islam's application was placed on hold to determine if he might qualify for an exemption, notwithstanding his associations with MQM--A. Id. at 21.

On September 17, 2010, Islam filed a complaint in this district, assigned to a different judge, challenging the delay in his adjudication. Islam v. Heinauer, C 10-04222 JSW, 2011 WL 2066661, at *2 (N.D. Cal. May 25, 2011) (" Islam I " ). Islam alleged violations of the Administrative Procedure Act (APA) based on the unreasonable delay in processing his Form I--485 and sought a writ of mandamus requiring adjudication. Id. The court granted defendant's motion for summary judgment, stating, " Although the Court can foresee a point at which the delay in ruling on Islam's I--485 Application would be unreasonable, based on the existing record, that time has not yet come." Id. at *8.

Nearly two years later, with his I--485 Application still pending, Islam filed this action on May 21, 2013. Islam once again asserts two claims for relief and seeks to compel adjudication.[2] Defendants now move to dismiss for lack of subject matter jurisdiction and for failure to state a claim. In the alternative, they move for summary judgment on the basis that the delay in processing Islam's I--485 Application is not unreasonable. Islam opposes the motion to dismiss and cross-moves for summary judgment on the basis that Defendants'

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delay in processing his I--485 Application is unreasonable as a matter of law.


A. Motion to Dismiss

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges a court's subject matter jurisdiction over the plaintiff's claims. A challenge to subject matter jurisdiction " can be either facial, confining the inquiry to allegations in the complaint, or factual, permitting the court to look beyond the complaint." Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n. 2 (9th Cir. 2003). A complaint may also be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. A Rule 12(b)(6) motion may be based on either the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

A complaint must present factual allegations sufficient " to raise a right to relief above the speculative level." Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Specifically, the factual allegations must suffice to state a claim that is " plausible on its face," that is, " plausibly suggesting (not merely consistent with)" a right to relief. Id. at 557, 570. While the factual allegations of the complaint are taken as true and all reasonable inferences are drawn in favor of the plaintiff, " [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also Twombly, 550 U.S. at 555. Accordingly, " a court discounts conclusory statements, ...

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