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Kemeria Beshir v. Eric Holder

January 24, 2011


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Re Document No.: 2




The plaintiff, an asylee from Ethiopia, commenced this action seeking an order compelling the defendants*fn1 to rule on her application to adjust her immigration status from asylee to that of a permanent resident. Since April 2008, the U.S. Citizenship and Immigration Services ("USCIS") has held in abeyance the plaintiff's request for reconsideration of her application, pursuant to a USCIS policy to withhold such decisions for certain categories of individuals whose applications involve terrorism-related grounds for inadmissibility. The matter is now before the court on the defendants' motion to dismiss or, in the alternative, for summary judgment. For the following reasons, the court denies the defendants' motion to dismiss and denies without prejudice the defendants' motion in the alternative for summary judgment.


A. Statutory Framework

Under the Immigration and Nationality Act ("INA"), the Secretary of the Department of Homeland Security ("DHS") may, "in [her] discretion and under such regulations as [she] may prescribe," adjust the immigration status of an asylee who, among other statutory criteria, qualifies as an "admissible" alien "at the time of examination for adjustment." 8 U.S.C. § 1159(b). Stated otherwise, the Secretary has the discretionary authority to allow an asylee to become a permanent resident if she deems that individual admissible.

One reason why an alien may be deemed inadmissible is if he or she has "engaged in terrorist activity" by providing "material support" to a "terrorist organization" ("material support bar"). Id. § 1182(a)(3)(B)(i)(I) (providing that "[a]ny alien who has engaged in terrorist activity" is inadmissible); id. § 1182(a)(3)(B)(iv)(VI) (defining "terrorist activity" to include providing material support to a terrorist organization). For purposes of this provision, terrorist organizations include both those organizations designated by the INA or certain U.S. officials, id. § 1182(a)(3)(B)(vi)(I)-(II), and "undesignated" organizations, known as Tier III organizations, id. § 1182(a)(3)(B)(vi)(III).

In 2008, Congress amended the INA to provide the Secretary with the discretionary authority to decide that the material support bar would not apply to an individual alien and to determine that an particular group would not constitute an "undesignated terrorist organization" under § 1182(a)(3)(B)(vi)(III). See id. § 1182(d)(3)(B)(i). In light of this new discretionary authority, USCIS issued a policy memorandum on March 26, 2008 instructing USCIS adjudicators to reopen and place "on hold" any case that had been denied on or after December 26, 2007 (the effective date of the relevant INA amendment) "in which the only ground(s) for referral or denial [was] a terrorist-related inadmissibility provision(s) and the applicant falls within one or more of [five] categories." Compl., Ex. Q ("March 2008 Policy Memorandum") at 2. The second category delineated in the memorandum, and the only one relevant here, concerns "[a]pplicants who are inadmissible under the terrorism-related provisions of the INA based on any activity or association that was not under duress relating to any other Tier III organization." Id.

On February 13, 2009, USCIS issued another memorandum to its field offices, revising the guidelines for the adjudication of cases involving terrorist-related inadmissibility grounds. See generally Compl., Ex. P ("February 2009 Policy Memorandum"). Although this memorandum "modifies the hold guidance to allow for certain cases to be elevated for a determination as to whether the hold should be lifted," id. at 1, it expressly requires that adjudicators hold in abeyance, "pending further instruction," any case in which the applicant is "inadmissible under the terrorist-related provisions of the INA based on any activity or association that was not under duress relating to any Tier III organization, other than those for which an exemption currently exists," *fn2 id. at 2. The memorandum provides that [i]f the adjudicating office receives a request from the beneficiary and/or attorney of record to adjudicate a case on hold per this policy (including the filing of a mandamus action in federal court) . . . the case should be elevated through the chain of command to appropriate Headquarters personnel. Guidance will be provided by USCIS headquarters on whether or not the case should be adjudicated. . . Adjudicators will receive additional guidance on continued or lifted holds on these cases as decisions are reached at the [Department of Homeland Security] level.

Id. at 3.

Normally, decisions on immigration applications are withheld under the procedures outlined in 8 C.F.R. § 103.2(b)(18). Under those procedures, the district director*fn3 "may authorize withholding adjudication [of an immigration application] if [he or she] determines that an investigation has been undertaken involving a matter relating to eligibility or the exercise of discretion." 8 C.F.R. § 103.2(b)(18). If, however, the investigation takes longer than one year to complete, the regulation provides that a district director shall review the matter and determine whether adjudication of the petition or application should be held in abeyance for six months or until the investigation is completed, whichever comes sooner. If, after six months of the district director's determination, the investigation has not been completed, the matter shall be reviewed again by the district director and, if he/she concludes that more time is needed to complete the investigation, adjudication may be held in abeyance for up to another six months. If the investigation is not completed at the end of that time, the matter shall be referred to the regional commissioner, who may authorize that adjudication be held in abeyance for another six months. Thereafter, if the Associate Commissioner, Examinations, with the concurrence of the Associate Commissioner, Enforcement, determines it is necessary to continue to withhold adjudication pending completion of the investigation, he/she shall review that determination every six months.


B. Factual & Procedural ...

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