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Jafarzadeh v. Duke

United States District Court, District of Columbia

September 7, 2017

ELAINE DUKE, Acting Secretary, U.S. Department of Homeland Security, et al.[1]Defendants.



         Plaintiff 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.


         The 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.

         Since 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. ¶ 22.

         For six 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.” Id.

         Plaintiffs 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. § 1182(a)(3)).

         In June 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).

         On 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.

         After 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].

         The 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.


         The 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).

         The 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. 1987)).

         When 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. 2008).


         I. Jurisdiction

         Federal 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).

         A. Mootness

         The government's primary argument is that this case must be dismissed because it's moot. See Defs.' Reply ...

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