United States District Court, District of Columbia
For SHASHI GENEME, Plaintiff: David R. Saffold, Washington, DC.
For ERIC HIMPTON HOLDER, JR., Attorney General of the United States, U.S. Department of Justice, JANET A. NAPOLITANO, Secretary, Department of Homeland Security, ROBERT S. MUELLER, III, Director, Federal Bureau of Investigations, ALEJANDRO MAYORKAS, Director, U.S. Citizenship and Immigration Services, LAUREN KIELSMEIER, Acting Deputy Director, U.S. Citizenship and Immigration Services, LORI SCIALABBA, Associate Director, Refugee, Asylum and International Operations, DONALD NEUFELD, Acting Associate Director, Domestic Operations, USCIS, DAVID ROARK, Director, Texas Service Center, USCIS, Defendants: William Charles Silvis, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Office of Immigration Litigation, District Court Section, Washington, DC.
Rudolph Contreras, United States District Judge.
An Ethiopian citizen, Shashi Geneme was granted asylum in 2002. She applied to adjust her status to that of a lawful permanent resident--that is, a green card holder--in 2005. Pursuant to a national policy, U.S. Citizenship and Immigration Services (" USCIS" or " the agency" ), an agency within the Department of Homeland Security, has placed her application on hold. In this suit, Ms. Geneme seeks an order that USCIS adjudicate her application. The agency has moved to dismiss her complaint for lack of subject matter jurisdiction and, in the alternative, for summary judgment.
Shashi Geneme was born in Addis Ababa, Ethiopia. Compl. ¶ 13. In 2002, she came to the United States on a B-2 visa and applied for asylum, which she received that same year. Id. On her asylum application, Ms. Geneme indicated that she had financially supported the Oromo Liberation Front, an armed group that advocates for the creation of a separate state for ethnic Oromos. Decl. of Naboone J. Puripongs Jaeger, May 25, 2012, at ¶ ¶ 11-12. According to published reports, the Front has used guerilla tactics against Ethiopian government troops and detonated bombs that have killed and injured civilians. Id. ¶ 11.
In 2005, Ms. Geneme submitted an I-485 application for permanent residence. Compl. ¶ 13. In 2006, Ms. Geneme submitted fingerprints and other information that USCIS needed to process her application. Id. ¶ ¶ 17-18. A long silence followed. In 2008, she began to contact USCIS about the delay in processing her application. Id. ¶ 19. Two letters in early 2009 informed her that USCIS was " actively processing this case." Compl., Ex. H (Letter from USCIS, Jan. 20, 2009); id., Ex. I (Letter from USCIS, Apr. 28, 2009). In December of that year she received another letter, which stated that:
Your case is on hold because you appear to be inadmissible under [§ ] 212(a)(3)(B) of the [Immigration and Nationality Act], and USCIS currently has no authority not to apply the inadmissibility ground(s) to which you appear to be subject. Rather than denying your application based on inadmissibility, we are holding adjudication in abeyance while the Department of Homeland Security considers additional exercises of the Secretary of Homeland Security[']s discretionary exemption authority. Such an exercise of the exemption authority might allow us to approve your case.
Id., Ex. K (Letter from USCIS, Dec. 11, 2009). Six months later, Ms. Geneme filed this suit.
The statutory provision which the letter cited makes aliens who have provided material support to a terrorist organization inadmissible as a general matter. As amended by the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302, the Immigration and Nationality Act (" INA" ) establishes three categories of terrorist organization: two formally designated by the Secretary of State, 8 U.S.C. § 1182(a)(3)(B)(vi)(I)-(II), and a third that, although not formally designated, nonetheless " engages in, or has a subgroup which engages in" terrorist activities, id. § 1182(a)(3)(B)(vi)(III). Groups in this third category are known as " Tier III" or " undesignated" terrorist organizations. In the Consolidated Appropriations Act of 2008 (" CAA" ), Pub. L. No. 110-161, 121 Stat. 1844, 2364-65, Congress gave both the Secretary of State and the Secretary of Homeland Security the authority to, " after consultation with the Attorney General" and each other, " determine in such Secretary's sole unreviewable discretion . . . that subsection (a)(3)(B)(vi)(III) of this section shall not apply to a group within the scope of that subsection." 8 U.S.C. § 1182(d)(3)(B)(i). By doing so, either Secretary can remove the bar on admissibility for aliens who have supported that group.
In March 2008, the deputy director of USCIS issued a memorandum in response to that grant of statutory authority. The memo stated that:
The Secretary [of Homeland Security] has not exercised his discretionary authority since passage of the CAA, and the Department of Homeland Security (DHS) currently is considering several groups and categories of cases as possible candidates for additional terrorist-related inadmissibility provision exemptions. Because new exemptions may be issued by the Secretary in the future, until further notice adjudicators are to withhold adjudication of cases in which the only ground(s) for referral or denial is a terrorist-related inadmissibility provision(s) and the applicant falls within one or more of the below categories:
. . . .
2. Applicants who are 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 organizations specifically named by the CAA]. .
. . . .
Adjudicators may also raise through their local chain of command to appropriate Headquarters personnel any case which presents compelling circumstances that warrant consideration of a new or individualized exemption that ...