United States District Court, N.D. California, Oakland Division
ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY
JUDGMENT AND DENYING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT DKT. 31, 33
SAUNDRA BROWN ARMSTRONG SENIOR UNITED STATES DISTRICT JUDGE
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).
The Form I-730 Petition Process
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.
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.
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.
Plaintiffs' Follow-to-Join Petition
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.
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.
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.
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.
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.
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.”
The Instant Action
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
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.
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