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Doe v. Risch

United States District Court, N.D. California, Oakland Division

July 26, 2019

JANE DOE and JOHN DOE, [1]Plaintiffs,
CARL RISCH, Assistant Secretary for Consular Affairs, U.S. Dept. of State, et al., [2]Defendants.



         In this immigration mandamus action, Plaintiffs seek an order compelling Defendants to adjudicate their Form I-730 petition for derivative asylum. Presently before the Court are the parties' cross-motions for summary judgment. Having read and considered the papers filed in connection with this matter and being fully informed, the Court GRANTS Plaintiffs' motion and DENIES Defendants' motion, for the reasons stated below. The Court, in its discretion, finds this matter suitable for resolution without oral argument. See Fed.R.Civ.P. 78(b); N.D. Cal. Civ. L.R. 7-1(b).

         I. BACKGROUND

         A. The Form I-730 Petition Process

         “A spouse or child . . . of an alien who is granted asylum under [section 1158(b)] may, if not otherwise eligible for asylum under this section, be granted the same status as the alien if accompanying, or following to join, such alien.” 8 U.S.C. § 1158(b)(3)(A). A principal asylee may request “accompanying or following-to-join benefits for his or her spouse or child(ren) by filing a separate Request for Refugee/Asylee Relative [i.e., a Form I-730 petition] . . . in accordance with the form instructions.” 8 C.F.R. § 208.21(d). To establish eligibility for derivative asylum, four requirements must be met: (1) the beneficiary's identity must be verified; (2) there must be a qualifying family relationship between the petitioner and the beneficiary; (3) the beneficiary cannot be subject to any of the mandatory bars to asylum; and (4) the beneficiary must merit a favorable exercise of discretion. Declaration of Seven J. Pollnow (“Pollnow Decl.”) ¶ 7, Dkt. 34.[3]

         A follow-to-join petition is processed in two distinct phases. Id. ¶ 8. First, the principal asylee in the United States files the I-730 petition, which is processed by USCIS at a domestic Service Center. Id. If approved, the beneficiary is then interviewed to determine if he or she is eligible to receive documentation authorizing travel to the United States. Id. ¶ 9. When a beneficiary is located outside the United States and in a location where USCIS does not have a presence, petitions approved by USCIS are forwarded to the DOS National Visa Center for transfer to the U.S. embassy or consulate with jurisdiction. Id. ¶ 10. In such circumstances, DOS is authorized to conduct the interviews, make eligibility determinations, and issue travel documentation. Id.

         Beneficiaries of follow-to-join petitions are subject to various “biographic and biometric background and security checks” throughout the petition process. Id. ¶ 15. As is pertinent here, Security Advisory Opinion (“SAO”) biographic checks may be initiated by the embassy/consulate following a beneficiary's DOS interview. Id. ¶ 16. SAOs are initiated for beneficiaries who “are nationals of a country that the U.S. government has designated as requiring this security check or who otherwise meet the requirements for an SAO.” Id. SAOs are conducted by the Federal Bureau of Investigation (“FBI”) and intelligence community partners. Id. “When an SAO is required, a cleared response must be received before issuance of a travel document to a beneficiary.” Id.

         B. Plaintiffs' Follow-to-Join Petition

         Jane Doe is a native citizen of Iran and a legal permanent resident of the United States. Declaration of Jane Doe (“Doe Decl.”) ¶ 1, Dkt. 32-1. She is married to John Doe, who still lives in Iran. Id. ¶ 2. They have two minor sons. Id.

         Jane Doe and her sons arrived in the United States on a tourist visa in December 2015. Id. ¶ 3. Shortly thereafter, Jane Doe converted to Christianity. Id. In Iran, “conversion from Islam is deemed apostacy and is punishable by death.” Id. ¶ 4. Fearing religious persecution if she returned to Iran, Jane Doe applied for asylum for herself and her children. Id. They were granted asylum on January 5, 2017. Id.[4]

         On January 30, 2017, Jane Doe filed a Form I-730 Petition on behalf of her husband, John Doe. Id. ¶ 5. She also submitted a request for expedited processing based on the distress of their younger son. Id. ¶ 6. Plaintiffs' younger son suffers from extreme depression and anxiety due to separation from his father and fears that his father may be harmed in Iran. Id. His mental suffering is so severe that he attempted suicide. Id. ¶ 7.

         On August 11, 2017, Plaintiffs' I-730 petition was preliminarily approved by USCIS and forwarded to the United States Embassy in Abu Dhabi, United Arab Emirates (the “Embassy”) for further processing. Id. ¶ 8. On September 13, 2017, the National Visa Center notified Plaintiffs' that their request for expedited processing had been approved. Id. ¶ 9. On November 16, 2017, John Doe appeared at the Embassy for his interview. Id. ¶ 10. At the end of the interview, John Doe was advised that his petition was being placed in administrative processing, where it has remained. Id. & Ex. A.

         Plaintiffs assert that John Doe's continued separation from his family is causing much pain and hardship. Id. ¶ 11. The family fears that John Doe is at risk of persecution in Iran due to his wife's conversion to Christianity. Id. As a result, Plaintiffs' youngest son continues to suffer from extreme anxiety and depression. Id. According to the treating psychologist, Plaintiffs' youngest son suffers debilitating panic and anxiety attacks and has experienced an increase in suicidal thoughts. Id. & Ex. B.

         Defendants admit that John Doe meets the criteria for derivative asylum based on his qualifying relationship to a principal asylee. Pollnow Decl. ¶ 6. They confirm that USCIS approved Plaintiffs' I-730 petition on August 11, 2017, and that the DOS interviewed John Doe at the Embassy on November 16, 2017. Id. ¶ 17. Defendants aver: “To date, USCIS has not received complete results of the security vetting process on the beneficiary, specifically the SAO, and until the complete results are received, and are deemed satisfactory for purposes of the [sic] determining the beneficiary's eligibility for derivative asylum status, no travel documentation can be issued.” Id.

         C. The Instant Action

         Plaintiffs filed the instant action on July 30, 2018 and filed the operative First Amended Complaint on November 5, 2018. Dkt. 1, 25. They bring a single cause of action pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., and the Mandamus Act, 28 U.S.C. § 1361, to compel Defendants to adjudicate their I-730 petition.

         A scheduling order was entered in this action in accordance with General Order 61. Dkt. 6. Thereafter, the parties filed several stipulations extending the deadline for Defendants to file an answer. See Dkt. 21, 23, 26, 29. Defendants' counsel advised that USCIS was “working to adjudicate Plaintiff's pending I-730 Petition, ” and the extensions were sought “to allow time for USCIS to continue [that] process[.]” Dkt. 29 ¶¶ 3-4. Defendants filed an Answer on December 21, 2018. Dkt. 28.

         Thereafter, Plaintiffs filed the instant Motion for Summary Judgment and Memorandum in Support of their Motion for Summary Judgment (“Mot.”). Dkt. 31, 32. Defendants' filed a combined Opposition to Plaintiffs' Motion for Summary Judgment and Cross-Motion for Summary Judgment (“Cross-Mot.”). Dkt. 33. Plaintiffs filed an Opposition and Reply (“Opp'n”), Dkt. 37, and ...

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