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Beshir v. Holder

United States District Court, District Circuit

January 27, 2014

ERIC H. HOLDER, JR., Attorney General of the United States, et al. Defendants.


JOHN D. BATES, District Judge.

Plaintiff Kemeria Ahmed Beshir, an asylee from Ethiopia, brings this lawsuit against the Attorney General, the Secretary of the Department of Homeland Security ("DHS"), the Director of the FBI, the Director of the United States Citizenship and Immigration Services ("USCIS"), and other USCIS officials. Beshir claims that defendants have unreasonably delayed the adjudication of her Form I-485 application to adjust her immigration status to that of a lawful permanent resident and have unlawfully failed to elevate her application to USCIS headquarters personnel. Before the Court is [37] defendants' third motion for summary judgment. Upon careful consideration of the motion and the parties' memoranda, the applicable law, and the entire record, the Court will dismiss Beshir's complaint for lack of subject-matter jurisdiction and will deny defendants' motion as moot.


The facts and history of this case have been set forth in the Court's prior opinions and orders.[1] Beshir is an Ethiopian citizen currently residing in the United States pursuant to a grant of asylum decided on March 26, 2003. Defs.' Statement of Material Facts Not in Dispute ("Defs.' Stmt.") [ECF No. 37-1] ¶ 1. In spring 2004, Beshir filed a Form I-485 application for adjustment of status to become a legal permanent resident. Id . ¶ 2. USCIS denied her application on February 28, 2008, after finding her inadmissible under section 212(a)(3)(B)(i)(I) of the Immigration and Nationality Act ("INA"), codified at 8 U.S.C. § 1182(a)(3)(B)(i)(I), which renders "inadmissible" for permanent residency status any alien who "engaged in a terrorist activity." Defs.' Stmt. ¶ 9. USCIS found Beshir inadmissible under this provision because of statements she made in her asylum application indicating that she supported the Oromo Liberation Front ("OLF"), an organization that USCIS has determined falls within the definition of a Tier III terrorist organization. Id . ¶¶ 7-9.

In spring 2008, Beshir filed a motion to reopen her adjustment application. Id . ¶ 11. USCIS granted her request, reopened her application on or about April 30, 2008, and then placed it on hold pursuant to a new USCIS policy. Id . ¶¶ 11, 12. The new policy stemmed from USCIS's March 26, 2008 Memorandum (the "2008 USCIS Memorandum"), which "instruct[ed] the withholding of adjudication of cases... that could potentially benefit" from an expanded authority to exempt Tier III groups from terrorism-related inadmissibility grounds. Id . ¶¶ 6, 10. The referenced exemption authority is found at 8 U.S.C. § 1182(d)(3)(B)(i), which permits the Secretary of State or the Secretary of Homeland Security, "in such Secretary's sole unreviewable discretion, " to exempt certain aliens who otherwise fall within the terrorism-related inadmissibility provisions of section 1182(a)(3)(B). 8 U.S.C. § 1182(d)(3)(B)(i). This discretionary exemption authority was broadened by the Consolidated Appropriations Act of 2008 to allow "the Secretary to not apply the definition of a Tier III... terrorist organization... to a group that falls within the scope of that definition, " and to allow "the Secretary to exempt most of the terrorist-related inadmissibility grounds delineated at... 8 U.S.C. § 1182(a)(3)(B) as they apply to individual aliens." Defs.' Stmt. ¶¶ 5, 6. Due to this expanded exemption authority, the 2008 USCIS Memorandum instructed USCIS personnel to place on hold certain adjustment applications that could potentially benefit from future 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 other Tier III organization[.]

Ex. Q to Am. Compl., 2008 USCIS Memorandum [ECF No. 17, ECF No. 1-1]. Pursuant to this policy, USCIS determined that Beshir may benefit from a future exemption, and her adjustment application was placed on hold. Defs.' Stmt. ¶¶ 10-12.

On February 13, 2009, USCIS issued revised policies on the adjudication of cases involving terrorist-related inadmissibility grounds (the "2009 USCIS Memorandum"). Id . ¶ 10. The 2009 USCIS Memorandum did not lift the hold on the adjudication of Beshir's case. Id . ¶ 12. It did, however, provide additional instructions regarding cases placed on hold:

If 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.

Ex. P to Am. Compl., 2009 USCIS Memorandum [ECF No. 17, ECF No. 1-1]; Defs.' 3d Mot. for Summ. J. ("Defs.' 3d MSJ") [ECF No. 37] at 15; Pl.'s Opp'n [ECF No. 38] at 6, 12. Beshir's attorney of record sent a letter on January 31, 2010 to the USCIS Director of the Nebraska Service Center requesting that "further action be taken" in Beshir's case, Ex. N to Am. Compl., Jan. 31, 2010 Letter [ECF No. 17; ECF No. 1-1], but USCIS appears not to have "elevated" Beshir's application "through the chain of command, " Pl.'s Opp'n at 6-7, 12.

Over the last several years, the Secretary of Homeland Security has exercised her exemption authority and exempted from terrorist-related inadmissibility qualifying aliens who provided "material support to the All India Sikh Students' Federation-Bittu Faction"; took part in "activities or associations relating to the All Burma Students' Democratic Front"; and "received military training under duress or... solicited funds or membership under duress." Defs.' Stmt. ¶¶ 13-15. Defendants have determined that no exemptions currently apply to Beshir and, consequently, the adjudication of her reopened application remains on hold pursuant to USCIS policy. Id . ¶¶ 12, 17.


After waiting approximately two years for a decision on her adjustment application, Beshir filed her initial complaint in this Court on April 27, 2010. See Compl. [ECF No.1]. Shortly thereafter, defendants sought dismissal of Beshir's complaint for lack of jurisdiction and, in the alternative, moved for summary judgment. See Defs.' Mot. to Dismiss or for Summ. J. [ECF No. 2]. Judge Urbina denied the motion to dismiss for lack of jurisdiction and denied without prejudice defendants' alternative motion for summary judgment. See Jan. 24, 2011 Order [ECF No. 5]; Jan. 24, 2011 Mem. Op. [ECF No. 6]. On March 23, 2011, USCIS interviewed Beshir in conjunction with her adjustment application. Defs.' Stmt. ¶ 16. Defendants then filed a second motion for summary judgment. See Defs.' 2d Mot. for Summ. J. [ECF No. 11]. Judge Urbina denied the motion without prejudice and granted Beshir leave to file an amended complaint to show that she had standing. See Mar. 9, 2012 Order [ECF No. 14]; Mar. 9, 2012 Mem. Op. [ECF No. 15]. Beshir filed an amended complaint on April 9, 2012. See Am. Compl. [ECF No. 17].

On August 17, 2012, DHS published a notice announcing a recent exercise of the Secretary's exemption authority under 8 U.S.C. § 1182(d)(3)(B)(i). See 77 Fed. Reg. 49, 821 (Aug. 17, 2012). The Court granted the parties' requests to stay proceedings for several weeks to allow time for USCIS to determine if the exemption applied to Beshir. See Aug. 30, 2012 Stip. [ECF No. 25]; Nov. 5, 2012 Stip. [ECF No. 29]. In a joint status report filed at the conclusion of the stay, defendants stated that "[d]uring the review process... USCIS discovered information which suggests that the OLF [the association with which Beshir is associated] may not be eligible for the exemption." Nov. 19, 2012 Status Report [ECF No. 30] at 2. Defendants asked the Court to extend the stay in Beshir's case because USCIS was "still conducting its review process, " but was "unable to provide an estimate of when" it would be finished. Id . Beshir opposed defendants' request to continue the stay, see id., and the Court let the stay expire. As of the date of this Opinion, Beshir has not received a decision on her adjustment application.

In her amended complaint, Beshir asks the Court to compel defendants to adjudicate her adjustment application within ninety days. See Am. Compl. ¶¶ 36-41. She does not argue that a terrorist-related inadmissibility exemption currently applies to her or that defendants have failed to complete some administrative task necessary to process her application. Rather, her claim is simply that defendants are taking an unreasonable amount of time to adjudicate her application. See id. She also claims that defendants have unlawfully failed to elevate her case "through the chain of command to appropriate Headquarters personnel" pursuant to the 2009 USCIS Memorandum, and argues that they should be compelled by the Court to apply that policy. Pl.'s Opp'n at 7 ("[Beshir] at the very least has a clear right to have the hold on her case reviewed by USCIS Headquarters.").

Defendants assert that the adjudication of Beshir's case has been delayed because it "is subject to extended processing due to the potential for high-level decision making that could affect her case" and argue that Beshir lacks a judicially enforceable right to demand that the government "prematurely conclude" this process. Defs.' 3d MSJ. at 1-2. Moreover, defendants argue, the adjudication of Beshir's adjustment application has not been unreasonably delayed. Id . Defendants also contend that the 2009 USCIS Memorandum represents internal policy guidance, not a binding regulation that the Court can compel them to apply. Id . at 14-16.

Because this Court has not yet determined whether an affirmative basis for subject-matter jurisdiction exists over Beshir's claims, it will do so now. In so doing, the Court will amend the earlier opinion in this case holding that the INA's jurisdiction-stripping provision, 8 U.S.C. § 1252(a)(2)(B)(ii), does not preclude judicial review. See Jan. 24, 2011 Mem. Op. Because the Court finds that it lacks subject-matter jurisdiction over Beshir's claims, it will not reach the parties' summary judgment arguments on the reasonableness of the delay in the adjudication of Beshir's adjustment application.


This Court is of limited jurisdiction, possessing "only that power authorized by Constitution and statute." Kokkonen v. Guardian Life Ins. Co. , 511 U.S. 375, 377 (1994). The Court can dismiss a complaint sua sponte for lack of jurisdiction at any time. Fed.R.Civ.P. 12(h)(3); see, e.g., Jerez v. Republic of Cuba , 777 F.Supp.2d 6, 15 (D.D.C. 2011). Although the Court must construe the complaint liberally, a plaintiff bears the burden of establishing the elements of federal jurisdiction. Lujan v. Defenders of Wildlife , 504 U.S. 555, 561 (1992). "[W]here necessary, the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Herbert v. Nat'l Acad. of Scis. , 974 F.2d 192, 197 (D.C. Cir. 1992). Additionally, although there is a "strong presumption in favor of judicial review of administrative action, " INS v. St. Cyr , 533 U.S. 289, 298 (2001), there is also a ...

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