United States District Court, E.D. California
KIMBERLY J. MUELLER, District Judge.
The parties' competing motions for summary judgment are currently pending before the court. (Pl.'s Mot. Summ. J., ECF 14; Defs.' Cross-Mot. Summ. J., ECF 15.) The court conducted a hearing on both motions on May 29, 2014, at which Nadia Farah appeared for plaintiff and Audrey Hemesath appeared for defendants. As explained below, the court REMANDS the case to the United States Citizenship and Immigration Services ("USCIS") for consideration of plaintiff's arguments based on the Charter of the United Nations ("UN Charter") concerning the legality of the relevant actions.
I. RELEVANT BACKGROUND
This immigration case for declaratory and injunctive relief arises out of the denial by USCIS of plaintiff's application to adjust his status from an asylee to that of a permanent resident. ( See Pl.'s Compl., ECF 1.) Plaintiff was born in Rwanda to an ethnic Hutu father and a Tutsi mother. (AR 49.) As a result of the Hutus' hostility towards Tutsis in Rwanda, plaintiff's family had to move from one African country to another regularly. ( See id. 111.)
In 1990, when a war began between the Hutus and Tutsis in Rwanda ( id. ), the Rwandan Patriotic Front ("RPF") invaded Rwanda from Uganda. ( Id. 111-12.) In 1991, when in Uganda ( id. 112), plaintiff joined the Youth Wing of the RPF. ( Id. 49.) As a member of the Youth Wing, plaintiff "conducted fundraising and participated in cultural education of Rwandese refugees in Tanzania and Uganda." ( Id. 49-50.) The Youth Wing was not a military group. ( Id. 112.)
In 1994, while plaintiff was in Tanzania, what has been described as the "Rwandan Genocide" began. ( Id. 50.) In the same year, plaintiff was mobilized by the RPF to join the Rwandan Patriotic Army ("RPA"). ( Id. ) As a member of the RPA, plaintiff received military training at Gabiro Training Camp; however, because "the genocide was over by the time plaintiff was finished with training[, ]... he never participated in combat and was never present at any battles." ( Id. )
After the war was over, plaintiff held various positions within the new government established by the RPF. ( See id. ) However, in 2001, plaintiff was arrested on suspicion of treason. ( Id. 114-15.) Eventually, plaintiff escaped from Rwanda and, in 2003, entered the United States on an F-1 student visa. ( Id. 102.) In the same year, plaintiff filed for asylum and in 2004, USCIS granted plaintiff's asylum application. ( Id. 44.) In granting plaintiff's asylum, the immigration officer found plaintiff's testimony to be credible ( id. 49) and found no factors existed that would make plaintiff ineligible for asylum ( id. 52).
Subsequently, in 2005, plaintiff applied for an adjustment of status from an asylee to that of a permanent resident. ( Id. 33.) The application remained pending for several years, and in 2012, USCIS denied plaintiff's application. ( See id. 1-3.) USCIS denied plaintiff's application because it found (1) plaintiff had received "military-type training from the RPA" and (2) plaintiff had solicited funds for the RPF. ( Id. 3.) It is that decision plaintiff now argues was erroneous. ( See ECF 1.) In arguing that USCIS's decision was erroneous, plaintiff "seeks judicial review under the Administrative Procedure Act [("APA")] of the denial of his application... and an order that his application be approved." ( Id. ¶ 1.) As noted above, both sides have moved for summary judgment. (ECFs 14, 15.) The parties have timely filed their respective opposition and reply briefs. (ECFs 15, 16, 18.)
Before reaching the parties' substantive arguments, the court must determine whether it has jurisdiction over this case, whether the parties contest it or not. See Cabaccang v. U.S. Citizenship & Immigration Servs., 627 F.3d 1313, 1315 (9th Cir. 2010).
It is well-established that federal courts are courts of limited jurisdiction, possessing "only that power authorized by Constitution and statute..., which is not to be expanded by judicial decree...." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted). "It is to be presumed that a cause lies outside this limited jurisdiction, ... and the burden of establishing the contrary rests upon the party asserting jurisdiction...." Id. (internal citations omitted). Moreover, while there is a "strong presumption in favor of judicial review of administrative action, " I.N.S. v. St. Cyr, 533 U.S. 289, 298 (2001), there is heightened "judicial deference to the Executive Branch... in the immigration context where officials exercise especially sensitive political functions that implicate questions of foreign relations, " I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (internal quotation marks omitted).
Generally, courts are empowered to conduct judicial review of agency actions under federal question jurisdiction. 28 U.S.C. § 1331; see Califano v. Sanders, 430 U.S. 99, 105 (1977) (holding that the APA itself does not provide an independent basis for subject matter jurisdiction). Under the APA, an agency action is subject to judicial review if (1) a statute makes it reviewable or (2) the action is final and one for which there is no other adequate remedy. 5 U.S.C. § 704. Although "[n]o statute authorizes judicial review over denials of status adjustment..., " Cabaccang, 627 F.3d at 1315, "[w]ithout a pending removal proceeding, a denial of status adjustment is final because there is no appeal to a superior administrative authority[, ]" id. at 1317.
Nevertheless, the APA also withdraws jurisdiction to review agency decisions when "(1) statutes preclude judicial review or (2) [when] agency action is committed to agency discretion by law." 5 U.S.C. § 701(a)(1)-(2). At first glance, 8 U.S.C. § 1252(a)(2), captioned "Matters not subject to judicial review, " may appear to contain one such provision. Specifically, subparagraph (B), titled "Denials of discretionary relief, " provides that "regardless of whether the... decision... is made in removal proceedings, no court shall have jurisdiction to review"
any... decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title.
Id. § 1252(a)(2)(B)(ii). While the heading of § 1252(a)(2)(B)(ii) is "Judicial review of orders of removal, " the Ninth Circuit has confirmed that the jurisdictional limitations stated in that section "also apply to review of agency decisions made outside of the removal context." Mamigonian v. Biggs, 710 F.3d 936, 943 (9th Cir. 2013) (internal quotations marks omitted). In light of § 1252(a)(2)(B)(ii)'s language, the court directed the parties to file supplemental briefs on the sole question whether the court has jurisdiction to entertain this case. (ECF 19.) The parties filed a joint supplemental brief, stating jurisdiction was uncontested. (ECF 20.)
After considering the parties' briefs and arguments at the hearing, the court finds that in light of the narrow scope of the review sought, the court has jurisdiction to review USCIS's determination of plaintiff's admissibility because whether plaintiff is inadmissible depends on the application of nondiscretionary statutory grounds. See Mamigonian, 710 F.3d at 942 (noting a plaintiff "may choose to bring a claim under the APA in district court[, ] [arguing] that USCIS improperly denied her adjustment-of-status application on nondiscretionary grounds").
Plaintiff filed an application to adjust his asylee status to that of a permanent resident under 8 U.S.C. § 1159. (AR 32.) While under that section the ultimate authority to adjust an asylee's status to that of a permanent resident is within the Attorney General's discretion, id. § 1159(b)(5), nothing in the statute makes the determination of an asylee's admissibility discretionary. Because the determination whether plaintiff is admissible is a question of law, this court has jurisdiction to review that determination. See Spencer Enterprises, Inc. v. United States, 345 F.3d 683, 690 (9th Cir. 2003) (to bar review, the statute must give the Attorney General "pure discretion, rather than discretion guided by legal standards").
III. STANDARD OF REVIEW UNDER THE APA
Generally, the standard of review in immigration cases depends on the nature of the decision being reviewed. See Manzo-Fontes v. INS, 53 F.3d 280, 282 (9th Cir. 1995) (analyzing the different standards). As noted previously, district courts are empowered to review agency action under the APA. 5 U.S.C. § 701, et seq. In conducting their review, courts must determine whether the agency's actions, findings and conclusions are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law...." 5 U.S.C. § 706(2)(A).
The standard of review "is a narrow one" because courts must not substitute their judgments "for that of the agency." Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). At the same time, however, the court's inquiry must be "searching and careful." Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989) (internal quotation marks omitted). Under this narrow standard, a decision is arbitrary and capricious
only if the agency relied on factors Congress did not intend it to consider; entirely failed to consider an important aspect of the problem; or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
Lands Council v. McNair, 629 F.3d 1070, 1074 (9th Cir. 2010) (internal quotation marks omitted). "In making this inquiry, [the court must] ask whether the agency considered the relevant factors and articulated a rational connection between the facts found and the choice made." Natural Res. Def. Council v. Dep't of the Interior, 113 F.3d 1121, 1124 (9th Cir. 1997) (internal quotation marks omitted). The court's review "is based on the administrative record[, ] and the basis for the agency's decision must come from the record." Nat'l Ass'n of Home Builders v. Norton, 340 F.3d 835, 841 (9th Cir. 2003).
Moreover, the interpretation of the Immigration and Nationality Act ("INA") by the USCIS "is entitled to deference and should be accepted unless demonstrably irrational or clearly contrary to the plain meaning of the statute." Occidental Eng'g Co. v. I.N.S., 753 F.2d 766, 768 (9th Cir. 1985) (internal quotation marks omitted).
IV. LEGAL STANDARD ON MOTION FOR SUMMARY JUDGMENT
A court will grant summary judgment "if... there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The "threshold inquiry" is whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
This standard does not change when the parties file cross-motions for summary judgment: the court must apply the same standard and rule on each motion independently because the granting of one motion does not necessarily translate into the denial of the other unless the parties rely on the same legal theories and same set of material facts. See Pintos v. Pac. Creditors Ass'n, 605 F.3d 665, 674 (9th Cir. 2010).
In the present case, because the material facts are not in dispute, the only question before the court is whether summary judgment is appropriate as a matter of law. See Sierra Club, 459 F.Supp.2d 76, 90 (D.D.C. 2006) ("Summary judgment... serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review.").
Plaintiff makes three principal arguments, the last two of which challenge the USCIS action as arbitrary and capricious. First, plaintiff reasons USCIS is bound under "principles of res judicata" by the asylum office's initial determination that plaintiff "had not engaged in disqualifying terrorist activity." (ECF 14 at 2.) Second, "USCIS[s] determination that the RPF and RPA were terrorist organizations' was erroneous." ( Id. ) Finally, RPA's and RPF's activities were not unlawful ...