MEMORANDUM OPINION
JOHN
D. BATES UNITED STATES DISTRICT JUDGE.
All
that is old in this case has been made new again. Manouchehr
Jafarzadeh, an Iranian national seeking to become a lawful
permanent resident ("LPR") of the United States,
alleges that his application was placed in a government
program that delays and denies immigration petitions on
overly broad national security grounds. The government filed
a motion to dismiss the first complaint in this matter,
arguing, among other things, that the issues in the case must
be adjudicated in removal proceedings, to which the
government had already consigned Jafarzadeh. The Court
granted the motion as to some aspects of the complaint, but
rejected the idea that the Court lacked jurisdiction and
denied the motion as to most of the claims raised. That
complaint has since been amended, but the new version
includes many of the same allegations and causes of action as
the original. And the government has responded in kind, with
another motion to dismiss that raises many-but not all-of the
same arguments it raised the first time around. As before,
the Court finds that it has jurisdiction, and that some-but
not all-claims can proceed.
BACKGROUND
Jafarzadeh
is an Iranian citizen who has lived legally and continuously
in the United States since he entered the country on a
student visa in 1979. See Am. Compl. [ECF No. 30]
¶ 8. He has been married since 1982 to plaintiff Shahnaz
Karami, an Iranian citizen and American LPR who has
continuously resided in the United States since 1978.
Id. ¶¶7, 9. Plaintiffs have three adult
daughters, all of whom are American citizens and reside in
the United States. Id. ¶ 9. Jafarzadeh worked
for the Interests Section of the Islamic Republic of Iran,
which is housed in the Pakistani Embassy in Washington, D.C.,
from June 1991 until he was denied LPR status in 2017.
Id. ¶ 20.
On
January 25, 2010, plaintiffs' daughter Razeyeh filed a
Form 1-130 Petition for Alien Relative on behalf of
Jafarzadeh, and Jafarzadeh concurrently filed a Form 1-485
Application to Register Permanent Residence or Adjust Status
as her immediate relative. Id. ¶¶ 1, 21.
Both petitions remained pending at the U.S. Citizenship and
Immigration Services (USCIS), a component of the Department
of Homeland Security (DHS), for over six years. Id.
¶ 21. During those years, Jafarzadeh was interviewed
twice by USCIS-once in 2011 and once in 2014-and was
interviewed or contacted a number of times by the Federal
Bureau of Investigation (FBI). Id. ¶¶
22-23. Jafarzadeh believed, based on the "content and
nature of these interviews," that the FBI wanted him to
become a government informant, Id. ¶ 24, and
that the FBI "would have used its power to remove the
roadblocks hindering the adjudication of his applications
before USCIS" if he had agreed, Id. ¶ 25.
Jafarzadeh cooperated with the agents' questioning, but
refused to become an informant. Id. He also
"consistently denied ever having provided support to,
expressed support for, or of having engaged in, terrorism or
terrorist-related activity." Id. ¶ 26.
For six
years, USCIS did not act on Jafarzadeh and Razeyeh's
applications. Plaintiffs allege that the applications were
funneled into a secret, alternate claims-processing system
known as the Controlled Application Review and Resolution
Program (CARRP), which was created in April 2008.
Id. ¶¶26, 28-29. Plaintiffs allege that
applications on this separate track "are reviewed under
protocols that lack any authority or foundation in statute or
regulation," and which "mandate[] denial or
perpetual delay" of those applications, "regardless
of the applicant's statutory eligibility for a particular
immigration benefit." Id. ¶ 33.
Plaintiffs
further contend that applications are selected for inclusion
in CARRP if the applicant is a "Known or
Suspected Terrorist" ("KST"), which
in turn is based on whether the individual is listed in the
"Terrorism Screening Database" ("TSDB");
or is a "Non-Known or Suspected Terrorist[]"
("non-KST"), meaning she has an "articulable
link to ... an activity, individual or organization that has
engaged in terrorist activity or been a member of a terrorist
organization." Id. ¶¶ 30-32 (internal
quotation marks omitted). According to plaintiffs, the TSDB
is maintained by the FBI, and that agency, among others, is
authorized to add individuals to the database. Id.
¶¶ 31, 34. Under CARRP, once an individual is
deemed a KST, USCIS field officers are prohibited from
granting that immigration application, "even if the
applicant has satisfied all statutory and regulatory
criteria." Id. ¶38. Thus, plaintiffs
argue, CARRP unlawfully delegates authority over immigration
to the FBI and other agencies that add names to the TSDB.
Id. ¶ 56. Plaintiffs also allege that CARRP
requires USCIS to deny applications on national security
grounds far broader than those listed in the Immigration and
Nationality Act (INA). Id. ¶¶ 47, 56.
Jafarzadeh
and Razeyeh filed this action in June 2016, more than six
years after filing their applications with DHS. The original
complaint challenged CARRP on a number of administrative and
constitutional grounds. On December 2, 2016, USCIS granted
Razeyeh's petition, thereby recognizing Jafarzadeh as her
immediate relative. See Collett Decl. [ECF No. 12-1]
¶ 3; Pls.' Response [ECF No. 21] at 1. But on
February 10, 2017, USCIS denied Jafarzadeh's application
for adjustment of status and placed him in removal
proceedings. See Collett Decl. ¶¶ 4-5;
USCIS Decision [ECF No. 15-2]; Notice to Appear [ECF No.
17-1]. The government argued that because plaintiffs sought
an order requiring USCIS to act on their applications, their
complaint had become moot. See Defs.' Mot. to Dismiss
[ECF No. 12] at 7-8. DHS also asserted that the relief
plaintiffs sought can only be obtained through the
administrative process before an immigration judge
("IJ") and the Board of Immigration Appeals (BIA),
followed by appeal to the appropriate circuit court. See
Defs.' Reply Br. [ECF No. 17] at 5-7 & n. 1.
Additionally, DHS argued that plaintiffs' claims should
be dismissed on the merits. Defs.' Mot. to Dismiss at
8-12.
In
September 2017, the Court granted in part and denied in part
defendants' motion to dismiss the case. See Sept. 7, 2017
Order [ECF No. 25]; Mem. Op. [ECF No. 26]. The Court first
determined that the claim seeking adjudication of
Jafarzadeh's and Razeyeh's petitions was moot, but
that the other claims in the case-seeking invalidation of
CARRP and a new adjudication free of CARRP-were not.
See Mem. Op. at 8-10. The Court then found that the
claims remaining in the case were ripe and free of finality
or exhaustion concerns, because Jafarzadeh did not seek
review of the ultimate decision USCIS had made on his LPR
application (which would have to go through the
administrative process outlined above) but rather had brought
a collateral challenge to the procedure by which his
application had been adjudicated-a claim which, under the
reasoning of McNary v. Haitian Refugee Center, Inc.,
498 U.S. 479 (1991), the text of the INA did not funnel into
the administrative process. See Mem. Op. at 10-20.
After
determining that it had jurisdiction to hear the case, the
Court dismissed plaintiffs' claim to compel compliance
with the INA, reasoning that the same claim could be and had
been asserted under the Administrative Procedure Act (AP A)
and that neither the Mandamus Act nor the Court's
inherent power to correct ultra vires agency action
applied when relief was available elsewhere. See
Id. at 20-22. Because the government's only
response to plaintiffs' substantive AP A claim was that
it was moot-an argument the Court rejected-the Court denied
the motion to dismiss that claim. See Id.
at 22. The Court denied without prejudice the motion to
dismiss plaintiffs' notice-and-comment claim, observing
that the Court did not have enough information to resolve the
issue because neither party had placed any CARRP materials in
the record. See Id. at 22-23. However, the Court
granted the motion to dismiss plaintiffs' due process
claim, finding that Jafarzadeh had no liberty or property
interest protected by the Due Process Clause and that Razeyeh
had not asserted such an interest herself. See
Id. at 23-25, 25 n.7. Finally, the Court found that
joining the Director of the Executive Office of Immigration
Review (EOIR) as a defendant, as plaintiffs requested, was
unnecessary because the Attorney General was already a
defendant and "is certainly empowered to grant the
relief sought." Id. at 25-26.
Plaintiffs
have since filed an amended complaint. See Am.
Compl. The new complaint substituted Karami, Jafarzadeh's
wife, for his daughter Razeyeh as the second plaintiff.
Otherwise, the amended complaint makes factual allegations
essentially identical to those in the original. Plaintiffs
also bring many of the same claims for relief, though they
have adjusted some in response to the Court's prior
opinion. They claim that USCIS must re-adjudicate
Jafarzadeh's LPR application "exclusive of
CARRP" (Count I), Id. ¶¶ 49-53; that
CARRP violates the separation of powers by creating criteria
and procedures not authorized by the INA (Count II),
Id. ¶¶ 54-57; that CARRP violates the AP A
because it is not in accordance with the INA or the
Constitution (Count III), Id. ¶¶ 58-59;
that adjudicating Jafarzadeh's application under CARRP
without explanation or a process to challenge his subjection
to CARRP violates Karami's due process rights to family
unity and the maintenance and enjoyment of her marriage in
the United States (Count IV), Id. ¶¶
60-64; and that CARRP is an agency rule that was improperly
promulgated without notice and comment in violation of the AP
A (Count V), Id. ¶¶ 65-70. The government
has filed a motion to dismiss the amended complaint, which is
now ripe for decision. See Defs.' Mot. to
Dismiss Pls.' Am. Compl. ("2d Mot. to Dismiss")
[ECF No. 31].
LEGAL
STANDARD
Defendants
have moved to dismiss this case both for lack of
subject-matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1) and for failure to state a claim under
Rule 12(b)(6). On a motion to dismiss for lack of
subject-matter jurisdiction, a plaintiff "bears the
burden of showing that he has standing." Summers v.
Earth Island Inst, 555 U.S. 488, 493 (2009). The
plaintiff "must demonstrate standing for each claim he
seeks to press and for each form of relief that is
sought." Town of Chester v. Laroe Estates,
Inc., 137 S.Ct. 1645, 1650 (2017) (citation omitted). At
the motion-to-dismiss stage, plaintiffs must plead facts
that, taken as true, render it plausible that the Court has
subject-matter jurisdiction. See Humane Soc'y of the
U.S. v. Vilsack, 797 F.3d 4, 8 (D.C. Cir. 2015). The
Court must take all facts alleged in the complaint as true
and make all reasonable inferences in plaintiffs' favor.
Id. The Court "may consider materials outside
the pleadings in deciding whether to grant a motion to
dismiss for lack of jurisdiction." See Gulf Coast
Mar. Supply, Inc. v. United States, 867 F.3d 123, 128
(D.C. Cir. 2017) (citation omitted).
To
survive a motion to dismiss under Rule 12(b)(6), a complaint
must "contain sufficient factual matter, accepted as
true, to 'state a claim to relief that is plausible on
its face.'" Ashcroft v. Iqbal 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). Plaintiffs cannot meet this standard
through "[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory
statements." Iqbal, 556 U.S. at 678. Likewise,
a court need not accept a plaintiffs legal conclusions, even
if they are dressed up as factual allegations. See Sickle
v. Torres Advanced Enter. Sols., LLC, 884 F.3d 338, 345
(D.C. Cir. 2018). However, just as with Rule 12(b)(1)
motions, courts must accept as true all facts stated in the
complaint and make all reasonable inferences in
plaintiffs' favor. Id.
ANALYSIS
I.
Jurisdiction
The
government raises-with varying degrees of explication-four
arguments why the Court lacks jurisdiction over
plaintiffs' suit. They claim: (1) the case is moot; (2)
the INA strips the Court of jurisdiction while Jafarzadeh is
in removal proceedings; (3) plaintiffs lack Article III
standing; and (4) the statute of limitations has run. The
Court will examine each assertion in turn.
A.
Mootness
The
government first argues that the case is moot because USCIS
has already adjudicated Jafarzadeh's application,
depriving the Court of a live controversy. This assertion
formed "[t]he government's primary argument" in
its first motion to dismiss. Mem. Op. at 8. The Court held
that plaintiffs' claims were rendered moot only
"[t]o the extent that the relief the plaintiffs seek is
an order requiring USCIS to act on their application."
Id. The Court therefore dismissed the count in the
original complaint that challenged USCIS's delay and
requested a final decision, but dismissed plaintiffs' INA
and substantive AP A claims only to the extent that they
sought that same relief. See Id. at 8-10.
The Court denied the motion to dismiss those claims to the
extent they sought other relief, "e.g., a declaratory
judgment that CARRP is unlawful and a remand for USCIS to
reconsider Jafarzadeh's application without applying
CARRP." Id. at 10. The Court also denied the
motion to dismiss plaintiffs' due process and
notice-and-comment claims. Id. The government has
pointed to no "intervening circumstance" between
September 2017 and the present that "deprives the
plaintiff of a 'personal stake in the outcome of the
lawsuit'" so as to render the case moot now.
Genesis Healthcare Corp. v. Symczyk 569 U.S. 66, 72
(2013) (citation omitted).
However,
the government also argues that, because the IJ can make a de
novo determination of Jafarzadeh's eligibility for LPR
status "that is not affected by either USCIS's
decision or CARRP," the Court cannot grant any
meaningful relief beyond what Jafarzadeh can already receive
in removal proceedings. 2d Mot. to Dismiss at 8; see Reply in
Supp. of Mot. to Dismiss ("Reply") [ECF No. 33] at
6-7. Therefore, the government asserts, "[a]ny opinion
issued at this point would be an impermissible advisory
opinion." 2d Mot. to Dismiss at 9; Reply at 7.
"A
case becomes moot-and therefore no longer a 'Case' or
'Controversy' for purposes of Article III-'when
the issues presented are no longer "live" or the
parties lack a legally cognizable interest in the
outcome.'" Already, LLC v. Nike, Inc., 568
U.S. 85, 91 (2013) (citation omitted). Here, the question is
whether plaintiffs still have a legally cognizable injury
that gives them an interest in the outcome of this case. For
reasons explained in Part I.C, infra, the answer to
that question is yes: Jafarzadeh has suffered a procedural
injury which continues to affect his concrete interests in
remaining and working in this country. Renewing
Jafarzadeh's application in the removal proceedings will
not cleanse him of his injury, unless the IJ actually grants
him LPR status. The Court, by sending Jafarzadeh's
application back to USCIS for reconsideration, would be able
to provide plaintiffs one chance more at achieving LPR status
than they would receive from an IJ alone-a fact that suffices
to keep the case alive. See Knox v. SER7, Local
1000, 567 U.S. 298, 307-08 (2012) ("A case becomes
moot only when it is impossible for a court to grant any
effectual relief whatever to the prevailing party."
(citation and internal quotation marks omitted)). Thus, the
government has not met its "heavy burden" of
proving mootness. Honeywell Int'l, Inc. v. Nuclear
Regulatory Comm'n, 628 F.3d 568, 576 (D.C. Cir.
2010).
B.
The INA and Jurisdiction-Channeling
In its
opinion on the first motion to dismiss, the Court determined
that 8 U.S.C. § 1252(a)-(b), which channels to an
administrative process most claims relating to orders of
removal, did not strip the Court of jurisdiction over the
claims in this case. See Mem. Op. at
10-20.[2] Now, however, the government argues that
"[a]ny injunction granting Plaintiffs the relief they
seek would . . . run afoul of another subsection of this same
provision, 8 U.S.C. § 1252(g). 2d Mot. to Dismiss at 11;
see Reply at 5. That subsection reads, in relevant part:
"[N]o court shall have jurisdiction to hear any cause or
claim by or on behalf of any alien arising from the decision
or action by the Attorney General to commence proceedings,
adjudicate cases, or execute removal orders against any alien
under this chapter." 8 U.S.C. § 1252(g). Thus,
while § l252(a)-(b) channels claims to the circuit
courts, § 1252(g) deprives all courts of jurisdiction.
The government puts § 1252(g) forward primarily as a
question of what remedy the Court can provide, and therefore
of redressability-a question explored further below. However,
the government also argues that this subsection is clear
enough to preclude the Court's jurisdiction over
plaintiffs' claims under the McNary decision.
See Reply at 5 n.3. It is therefore necessary to
determine whether § 1252(g), unlike § l252(a)-(b),
strips the Court of jurisdiction over this case.
The
Supreme Court has rejected a broad reading of §
1252(g)'s scope, holding that it "applies only to
[the] three discrete actions" explicitly mentioned in
the text-that is, to the Attorney General's
'"decision or action' to 'commence
proceedings, adjudicate cases, or execute
removal orders." Reno v. Am.-Arab
Anti-Discrimination Comm. ("AAADC"), 525 U.S.
471, 482 (1999) (quoting 8 U.S.C. § 1252(g)). Section
1252(g) does not apply to the "many other decisions or
actions that may be part of the deportation process."
Id. In this case, plaintiffs challenge CARRP and its
use in Jafarzadeh's LPR application procedure. The agency
actions they challenge are separate from-and, indeed,
predate-any decision or action to commence or adjudicate
Jafarzadeh's removal proceeding. Therefore, on a
plain-text reading of the statute, plaintiffs' claims do
not "aris[e] from" any of the actions enumerated in
§ 1252(g). All the more so since the Supreme Court has
"not interpret[ed] this language to sweep in any claim
that can technically be said to 'arise from'"
those actions, but rather has read it only to refer to
"those three specific actions themselves."
Jennings v. Rodriguez, 138 S.Ct. 830, 841 (2018).
Indeed, at least two circuits have explicitly held that
challenges to actions predating the decision to initiate
removal proceedings are not subject to § 1252(g)'s
jurisdictional bar. See Kwai Fun Wong v. United
States, 373 F.3d 952, 965 (9th Cir. 2004); Humphries
v. Various Fed. USINS Employees, 164 F.3d 936, 944 (5th
Cir. 1999). Since plaintiffs' claims arise from the
process by which Jafarzadeh's LPR application was
handled, rather than from USCIS's ensuing decision to
commence removal proceedings, § 1252(g) does not deprive
this Court of jurisdiction.
The
same factors that led the Court to find § l252(a)-(b)
inapplicable also confirm that § 1252(g) does not forbid
review of plaintiffs' claims. The text of § 1252(g)
does not expressly limit district court jurisdiction for
claims arising from events other than the three enumerated
actions. See Free Enter. Fund v. Pub. Co. Accounting
Oversight Bd., 561 U.S. 477, 489 (2010). Nor does the
text of any other provision in § 1252 limit jurisdiction
over these collateral claims. See Mem. Op. at 16-20.
Granted, some courts have refused to exercise jurisdiction
over claims that fell outside the text of § 1252 when
they were seen as indirectly attacking the plaintiffs'
removal orders. See, e.g., Singh v. USCIS, 878 F.3d
441, 445-46 (2d Cir. 2017); Martinez v. Napolitano,
704 F.3d 620, 622 (9th Cir. 2012); Estrada v.
Holder, 604 F.3d 402, 408 (7th Cir. 2010); Chen v.
Rodriguez, 200 F.Supp.3d 174, 182 (D.D.C. 2016). But
see Zhang v. Napolitano, 604 F.Supp.2d 77, 80 (D.D.C.
2009) ("Although it is apparent that Zhang's
ultimate goal is to prevent the Attorney General from
executing the removal order upheld by the First Circuit, his
present claim seeks only to compel the USCIS to act on his
asylum application . . . ."). But in all of those cases
the plaintiffs had already received orders of removal, review
of which is explicitly channeled to the courts of appeals,
and were seeking indirectly to nullify those orders.
Jafarzadeh has not yet had a merits hearing before an IJ,
much less received an order of removal. Hence, this case is
governed by the general rule: "claims falling outside
the text of a jurisdiction-channeling provision . . . may
proceed in the district court." Gen. Elec. Co. v.
Jackson, 610 F.3d 110, 127 (D.C. Cir.
2010).[3]
Nor
does the combination of provisions in § l252(a)-(b) and
§ 1252(g) implicitly forbid review. "Provisions for
agency review do not restrict judicial review unless the
'statutory scheme' displays a 'fairly
discernible' intent to limit jurisdiction, and the claims
at issue 'are of the type Congress intended to be
reviewed within th[e] statutory structure.'"
Free Enter. Fund, 561 U.S. at 489 (quoting
Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207,
212 (1994)). Certainly, § 1252 as a whole displays a
discernible intent to limit jurisdiction. After all, §
1252(b)(9) is designed as a "general jurisdictional
limitation" for "claims arising from deportation
proceedings," and § 1252(g) "is specifically
directed at the deconstruction, fragmentation, and hence
prolongation of removal proceedings," AAADC,
525 U.S. at 482-83, 487. But the claims in this case are not
of the type intended to be reviewed within the channeled
structure of § 1252. The Court's previous analysis
of § l252(a)-(b), together with the above examination of
§ 1252(g), confirms that all of the criteria that weigh
against jurisdiction-stripping apply here. See Free
Enter. Fund, 561 U.S. at 489 ("[W]e presume that
Congress does not intend to limit jurisdiction if 'a
finding of preclusion could foreclose all meaningful judicial
review'; if the suit is 'wholly collateral to a
statute's review provisions'; and if the claims are
'outside the agency's expertise.'" (citation
omitted)).[4]
Finally,
"[a]ny lingering doubt about the proper interpretation
of 8 U.S.C. § 1252[] would be dispelled by a familiar
principle of statutory construction: the presumption favoring
judicial review of administrative action." Kucana v.
Holder, 558 U.S. 233, 251 (2010). This presumption has
been "consistently applied" to "legislation
regarding immigration, and particularly to questions
concerning the preservation of federal-court
jurisdiction." Id. It is assumed that Congress
legislates in the shadow of this canon, and "[i]t
therefore takes 'clear and convincing evidence' to
dislodge the presumption." Id. at 252 (citation
omitted). As the preceding discussion indicates,
"[t]here is no such evidence here." Id.
Therefore, § 1252 does not deprive the Court of
jurisdiction.
C.
Article III Standing
In
addition to its arguments on mootness and
jurisdiction-channeling, the government asserts that these
plaintiffs lack standing to pursue this case. The government
first contends that plaintiffs have suffered no injury and
cannot receive relief on any of their claims, and then makes
more particular arguments regarding plaintiffs' standing
to bring their separation of powers claim.
1.
Standing for All Claims
i.
Injury-in-fact
The
government claims that plaintiffs cannot identify a
cognizable injury for standing purposes because they
"have made no allegations that CARRP applies in
immigration court, where Jafarzadeh . . . can renew his
application for adjustment of status." 2d Mot. to
Dismiss at 10. "CARRP is now irrelevant to
[Jafarzadeh's] immigration proceedings," the
government avers, and therefore "[Jafarzadeh] is
currently receiving the relief that Plaintiffs seek":
adjudication free of CARRP. Id. The government also
asserts that plaintiffs have suffered no more than a
speculative injury from USCIS's denial of
...