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Kemeria Beshir v. Eric Holder

March 9, 2012

KEMERIA BESHIR, PLAINTIFF,
v.
ERIC HOLDER, II ET AL., DEFENDANTS.



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

Re Document No.: 11

MEMORANDUM OPINION

DENYING WITHOUT PREJUDICE THE DEFENDANTS'MOTION FOR SUMMARY JUDGMENT; GRANTING LEAVE TO FILE AN AMENDED COMPLAINT;GRANTING LEAVE TO THE DEFENDANT TO FILE A RENEWED MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

This matter comes before the court on the defendants' renewed motion for summary judgment. The plaintiff, an asylee from Ethiopia, seeks to compel the defendants*fn1 to make a decision on her application to adjust her immigration status from an asylee to 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 to adjust her immigration status. According to the defendants, this decision was made pursuant to a USCIS policy to withhold such decisions for certain categories of individuals whose applications involve terrorism-related grounds for inadmissibility.

As explained below, the court is not persuaded that the plaintiff has sufficiently alleged an injury in fact, a prerequisite to demonstrate standing. The plaintiff, however, may remedy this jurisdictional hurdle with a well-pleaded complaint. The court therefore grants the plaintiff leave to file an amended complaint, or alternatively, orders the plaintiff to show cause why her complaint should not be dismissed for lack of standing.

Additionally, the defendants' motion for summary judgment is deficient as it fails to address whether USCIS is required to abide by its own internal policy when processing the plaintiff's application and, if so, whether it has done so. Thus, the court rules that if the plaintiff files an amended complaint, the defendants may file a second renewed motion for summary judgment, which will address this issue. In sum, because the court must determine whether it properly has jurisdiction prior to ruling on the defendant's motion, and because the defendant fails to address a central issue, the court denies without prejudice the defendants' motion for summary judgment, and grants the defendants leave to file a second renewed motion for summary judgment.

II. BACKGROUND

The plaintiff, a citizen of Ethiopia, came to the United States in 2002 on a visitor visa. Compl. ¶ 13. She subsequently applied for and was granted asylum on March 26, 2003. Id. Under the Immigration and Nationality Act ("INA"), the Secretary of the Department of Homeland Security ("DHS") has the discretionary authority to allow an asylee to become a permanent resident if she deems that individual admissible. 8 U.S.C. § 1159(b). On May 3, 2004, the plaintiff applied to adjust her status to that of a permanent resident. Defs.' Statement of Material Facts Not in Dispute ("Defs.' Statement") ¶¶ 1-2.

On February 28, 2008, USCIS notified the plaintiff that her application for adjustment of status had been denied. See generally Compl., Ex. B ("February 2008 Letter"). This decision was based on statements made by the plaintiff in her asylum application reporting that, while living in Ethiopia, she had provided material support to a group known as the Oromo Liberation Front ("OLF"). Id. at 3; Defs.' Mot. to Dismiss, Martin Decl. ¶¶ 10-11. According to USCIS, the OLF met "the current definition of an undesignated terrorist organization" as set forth in the INA. February 2008 Letter at 3. Because the plaintiff's "acts of material support of the OLF were voluntary," USCIS determined that the plaintiff was inadmissible as a permanent resident and denied her application for adjustment. Id.

USCIS granted the plaintiff's request to reopen her application on April 30, 2008, but advised her that her case would be "placed on hold" because the record was insufficient "to establish eligibility for the benefit sought." Compl., Ex. I at 1. Since that time, the plaintiff has inquired as to the status of her application on multiple occasions, but USCIS has consistently responded that her application "is still currently on hold" at the processing center. Compl. ¶ 23. On January 31, 2010, the plaintiff sent USCIS a letter requesting adjudication of her application. Id. ¶ 27. Notwithstanding these efforts, the plaintiff has not yet received a disposition on her application. Id. ¶ 34.

According to the defendants, the delay in the adjudication of the plaintiff's application is the result of "evidence of terrorism-related inadmissibility in [her] application and the extended processing required." Defs.' Mot. for Summ. J. at 3. USCIS claims that the plaintiff's application remains "in abeyance per USCIS policy regarding terrorism-related inadmissibility." Id.

USCIS issued a memorandum on February 13, 2009 which outlines guidelines for the adjudication of cases involving terrorist-related inadmissibility grounds. See generally Compl., Ex. P ("February 2009 Policy Memorandum"). This memorandum 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. Importantly, the memorandum specifically 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 ...


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