United States District Court, District of Columbia
D. BATES, UNITED STATES DISTRICT JUDGE
Manouchehr Jafardzadeh is a non-citizen who is lawfully
present in the United States and who applied for an
adjustment of status to become a lawful permanent resident.
His U.S. citizen daughter, Razeyeh Jafardzadeh, filed the
corresponding application for Manouchehr to become a lawful
permanent resident as an immediate relative of a U.S.
citizen. The United States Citizenship and Immigration
Service (USCIS), the agency within the Department of Homeland
Security (DHS) that adjudicates these applications, granted
her application but denied his. Although he may only
challenge the ultimate determination of his application
through administrative proceedings and then an appeal to the
circuit court, he instead seeks to challenge the process by
which USCIS adjudicated his initial application through a
suit in this Court. He alleges that USCIS employs a procedure
for reviewing certain applications known as the
“Controlled Application Review and Resolution Program,
” and that USCIS's use of this process without
promulgating a notice-and-comment rule violates the
Administrative Procedure Act and his right to procedural due
process under the Fifth Amendment. DHS, on the other hand,
mantains that because USCIS has already made a determination
and now an immigration judge will make a new determination on
his application through the administrative process, the
claims against USCIS are either moot or unripe. DHS further
argues that even if Manouchehr's claims are not moot or
unripe, they must be dismissed because he has failed to state
a claim under the Immigration and Nationality Act, the
Administrative Procedure Act, or the Constitution. For the
reasons explained below, the Court will grant in part and
deny in part the motion to dismiss.
facts that follow are as stated in plaintiffs' complaint,
which at this stage, the Court accepts as true. Plaintiff
Manouchehr is a citizen of Iran who has lawfully resided in
the United States since 1979. Compl. [ECF No. 1] ¶ 16.
His daughter, plaintiff Razeyeh, is a U.S. citizen.
Id. ¶ 1. In January 2010, plaintiffs
respectively filed the appropriate forms for Manouchehr to
adjust his status to that of a lawful permanent resident:
Razeyeh filed a Petition for Alien Relative (Form I-130) and
Manouchehr filed a concurrent Application to Register
Permanent Residence or Adjust Status (Form I-485).
Id. ¶¶ 1, 7, 19.
these applications were filed, USCIS has twice interviewed
Manouchehr, once in 2011 and once in 2014. Id.
¶ 19. He has also been contacted by the Federal Bureau
of Investigation “multiple times, ” most recently
in 2014. Id. The FBI has, allegedly, conveyed that
if Manouchehr became an informant on the Iranian community in
the United States, “the FBI would use its influence to
remove roadblocks hindering the adjudication of his
applications” to become a lawful permanent resident.
Id. ¶¶ 19-22. Manouchehr has consistently
declined to act as an informant for the FBI. Id.
years after plaintiffs had submitted their applications, but
before they filed this lawsuit, USCIS neither approved nor
denied the applications. Plaintiffs allege that this is
because their applications were subject to a secret,
alternate process for adjudicating applications from certain
immigrants, known as the Controlled Application Review and
Resolution Program (CARRP). Plaintiffs allege that “in
April 2008, USCIS created CARRP, an agency-wide policy for
identifying, processing, and adjudicating applications for
certain immigration benefits” in secret, and it only
“[came] to light as a result of” documents
released pursuant to Freedom of Information Act requests.
Id. ¶ 25. They allege that “once an
application is selected for processing under CARRP, USCIS
removes the application from the agency's routine
adjudication track and places it on a separate CARRP
track.” Id. ¶ 29. The applications on
this separate track “are reviewed under protocols that
lack any authority or foundation in statute or
regulation” and “CARRP mandates denial or
perpetual delay” of those applications,
“regardless of the applicant's statutory
eligibility for a particular immigration benefit.”
further contend that applications are selected for inclusion
in CARRP based on whether the applicant is a “known or
suspected terrorist, ” which in turn is based on
whether the individual is listed in the “Terrorism
Screening Database” or has a “link to . . . an
activity, individual or organization that has engaged in
terrorist activity or been a member of a terrorist
organization.” Id. ¶¶ 26-29
(internal quotation marks omitted). The “Terrorism
Screening Database” is, according to plaintiffs,
maintained by the FBI, and that agency (as well as other
intelligence agencies) is authorized to add individuals to
the database. Id. ¶ 32. Pursuant to CARRP, once
an individual is included in the Terrorism Screening
Database, USCIS field officers are prohibited from granting
that immigration application, “even if the applicant
has satisfied all statutory and regulatory criteria.”
Id. ¶ 33. Thus, plaintiffs argue, although the
immigration laws grant the Secretary of Homeland Security the
authority to adjudicate immigration applications, CARRP
unlawfully delegates that authority to the FBI and to other
agencies that add individuals to the Terrorism Screening
Database. Further, plaintiffs allege that CARRP requires
USCIS to deny applications on national-security related
grounds that are far broader than the ones articulated in the
governing statute. Id. ¶ 41 (citing 8 U.S.C.
2016, more than six years after plaintiffs filed their
applications with DHS, they filed this action. (The suit
names several government officials as defendants. For
simplicity, the Court will refer to the defendants as DHS,
USCIS, or the government.) The suit, styled as one for
mandamus relief, seeks an order under the Immigration and
Nationality Act (INA) and the Administrative Procedure Act
(APA) requiring USCIS to adjudicate the applications after
six years of delay (Counts I, II, and III). See id.
¶¶ 42-52. It also asserts that CARRP's
delegation of immigration decisions to other agencies besides
USCIS violates the INA, and therefore seeks adjudication of
the applications without the application of CARRP (Count II).
Id. ¶¶ 47-50. It further alleges that
DHS's refusal to notify Manouchehr that his application
was subject to CARRP violates his procedural due process
rights under the Fifth Amendment (Count IV). Id.
¶¶ 53-55. Finally, the suit contends that CARRP is
a “rule” and therefore must be promulgated in
accordance with the APA's notice-and-comment requirements
under 5 U.S.C. § 553 (Count V), and the application of
CARRP to Manouchehr is arbitrary and capricious under 5
U.S.C. § 706 (Count III).
December 2, 2016 USCIS granted Razeyeh's petition,
thereby recognizing Manouchehr as her immediate relative.
See Collett Decl. [ECF No. 12-1] ¶ 3; Pls.'
1st Supp. Br. [ECF No. 21] at 1. But on February 10, 2017,
USCIS denied Manouchehr's application for adjustment of
status. See Collett Decl. ¶ 4; Pls.'
Opp'n [ECF No. 15] at 7. The government argues that
because plaintiffs seek an order requiring USCIS to act on
their applications, their complaint is now moot. See
Defs.' Mot. to Dismiss [ECF No. 12] at 7-8. DHS also
asserts that the ultimate relief that plaintiffs seek is not
a particular procedure, but rather a different ruling on
Manouchehr's application. This relief, DHS argues, can
only be obtained through the administrative process before an
immigration judge and the Board of Immigration Appeals,
followed by appeal to the appropriate circuit court, and thus
the claims are also unripe. See Defs.' Reply Br.
[ECF No. 17] at 5-8 & n.1. DHS also contends that
plaintiffs have failed to state a claim under the INA because
that act “does not create a private right of action to
challenge the length of time or process USCIS takes to
adjudicate I-130 and I-485 petitions.” Defs.' Mot.
to Dismiss at 8. Moreover, because CARRP is not a final
agency action as defined by 5 U.S.C. § 704, plaintiffs
have failed to state a claim under the APA. See id.
at 10 (citing Lujan v. Nat'l Wildlife Fed'n,
497 U.S. 871, 882 (1990)). And, finally, the government
asserts that plaintiffs here failed to state a due process
claim because Manouchehr cannot identify any constitutionally
protected property or liberty interest in his adjustment of
status application. Id. at 12.
the motion to dismiss was fully briefed, the Court ordered
the parties to file supplemental memoranda to provide
additional information and legal arguments. See
Order, July 21, 2017 [ECF No. 18]. Plaintiffs'
supplemental brief confirms that Razeyeh does not request any
further action with respect to her application but instead
asserts that she is injured by USCIS's unlawful
procedures in adjudicating Manouchehr's application.
Pls.' 1st Supp. Br. at 1-2. It also confirms that removal
proceedings are currently pending against Manouchehr before
an immigration judge, and therefore asks that James McHenry,
Acting Director of the Department of Justice's Executive
Office of Immigration Review (the office responsible for
immigration judges and the Board of Immigration Appeals), be
added as a defendant. Id. at 9. The government's
supplemental brief confirms that it believes that Manouchehr
cannot assert his statutory or constitutional claims before
the immigration judge or the Board of Immigration Appeals,
and may only raise them to the circuit court based on the
existing administrative record. See Defs.' 1st
Supp. Br. [ECF No. 20] at 7. The parties also identified the
handful of other cases considering CARRP. See
Pls.' 1st Supp. Br. at 3-8; Defs.' 1st Supp. Br. at
4-7 & Ex. 2 [ECF No. 20-2]; Defs.' Notice of Supp.
Authority [ECF No. 24].
Court then ordered a second round of supplemental memoranda
to address what affect, if any, the class certifications in a
recent case on a similar topic, Wagafe v. Trump, No.
C17-0094-RAJ, 2017 WL 2671254 (W.D. Wa. June 21, 2017), might
have on their respective positions. See Minute
Order, July 21, 2017. The parties both took the position that
neither plaintiff here is a member of the certified classes
in that case: Razeyeh because she is a U.S. citizen, and
Manouchehr because his application was adjudicated before the
applicable date for the class that was certified.
See Pls.' 2nd Supp. Br. [ECF No. 22]; Defs.'
2nd Supp. Br. [ECF No. 23]. The Court therefore assumes
without deciding that plaintiffs are not members of those
classes and therefore that the proceedings in that case have
no bearing on the issues before the Court in this matter.
government has moved to dismiss for lack of subject matter
jurisdiction and failure to state a claim. See
Fed.R.Civ.P. 12(b)(1), (b)(6). When considering a motion to
dismiss, a court presumes the truth of the complaint's
factual allegations. Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). However, when evaluating either grounds
for dismissal, a court is “not bound to accept as true
a legal conclusion couched as a factual allegation.”
Id. (internal quotation marks omitted) (failure to
state a claim).
party seeking to invoke the jurisdiction of the federal court
bears the burden of establishing the court's
jurisdiction. See U.S. Ecology, Inc. v. U.S. Dep't of
the Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). But
plaintiffs are not the only ones with jurisdictional
responsibilities; the court also has an “affirmative
obligation to ensure that it is acting within the scope of
its . . . authority.” Grand Lodge of Fraternal
Order of Police v. Ashcroft 185 F.Supp.2d 9, 13 (D.D.C.
2001). Thus, “‘[p]laintiff s factual allegations
. . . will bear closer scrutiny in resolving a 12(b)(1)
motion' than in resolving a 12(b)(6) motion for failure
to state a claim.” Id. at 13-14 (alteration in
original) (quoting 5A Charles Alan Wright & Arthur R.
Miller, Federal Practice & Procedure § 1350 (2d ed.
evaluating a motion to dismiss for failure to state a claim,
the court asks whether the facts alleged suffice “to
state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks omitted). “The complaint
should not be dismissed unless plaintiffs can prove no set of
facts in support of their claim which would entitle them to
relief.” Kowal v. MCI Commc'ns Corp., 16
F.3d 1271, 1276 (D.C. Cir. 1994). Thus “the complaint
is construed liberally in the plaintiffs' favor.”
Id. A court “must not make any judgment about
the probability of the plaintiffs' success, ”
“must assume all allegations in the complaint are true
(even if doubtful in fact)” and “must give the
plaintiff the benefit of all reasonable inferences derived
from the facts alleged.” Akteiselskabet AF 21, Nov.
2001 v. Fame Jeans, Inc., 525 F.3d 8, 17 (D.C. Cir.
courts are limited to deciding “actual cases or
controversies.” Spokeo, Inc. v. Robins, 136
S.Ct. 1540, 1547 (2016) (internal quotation marks omitted)
(citing U.S. Const. Art. III § 2). “Standing to
sue is a doctrine rooted in the traditional understanding of
a case or controversy.” Id. The twin doctrines
of mootness and ripeness can be described as “standing
set in a time frame: The requisite personal interest that
must exist at the commencement of litigation (standing) must
continue throughout its existence (mootness).”
Arizonans for Official English v. Arizona, 520 U.S.
43, 68 n.22 (1997) (internal quotation marks omitted);
see also Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs., Inc., 528 U.S. 167, 189-94 (2000).
government's primary argument is that this case must be
dismissed because it's moot. See Defs.'