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Jafarzadeh v. Nielsen

United States District Court, District of Columbia

August 6, 2018

KIRSTJEN NIELSEN, Secretary, U.S. Department of Homeland Security, et al.[1] Defendants.



         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.


         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].


         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.


         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 ...

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