United States District Court, E.D. Pennsylvania
Decided March 18, 2014.
[Copyrighted Material Omitted]
For AQUEEL AHMED, Plaintiff: DAVID KAPLAN, LEAD ATTORNEY, ORLOW, KAPLAN & HOHENSTEIN, LLP, PHILADELPHIA, PA.
For ERIC HOLDER, IN HIS OFFICIAL CAPACITY AS THE ATTORNEY GENERAL OF THE UNITED STATES, JANET NAPOLITANO, IN HER OFFICIAL CAPACITY AS SECRETARY OF THE UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ALEJANDRO MAYORKAS, IN HIS OFFICIAL CAPACITY AS DIRECTOR, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, MARILYN P. WILES, IN HER OFFICIAL CAPACITY AS DIRECTOR OF THE NEBRASKA SERVICE CENTER, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, DONALD NEUFELD, IN HIS OFFICIAL CAPACITY AS CHIEF OF SERVICE CENTER OPERATIONS, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, Defendants: ANTHONY ST. JOSEPH, U.S. ATTORNEY'S OFFICE, PHILADELPHIA, PA; DAVID ANDREW DEGNAN, U.S. DEPARTMENT OF JUSTICE, PHILADELPHIA, PA.
ANITA B. BRODY, J.
Plaintiff Aqueel Ahmed seeks to compel adjudication of his application for adjustment of immigration status from tat of asylee to lawful permanent resident. Defendants, all government officials sued in their official capacities, move to dismiss Ahmed's complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). In the alternative, Defendants move for summary judgment pursuant to Federal Rule of Civil Procedure 56. I will grant in part and deny in part the motion to dismiss for the reasons discussed below. With respect to the motion for summary judgment, while I agree with Defendants that there are no material issues of fact remaining for trial, I find that Ahmed is entitled to an order requiring Defendants to adjudicate his application on or before 120 days from my judgment in this case.
FACTUAL AND PROCEDURAL BACKGROUND
Ahmed is a native and citizen of Pakistan. Compl. ¶ 30. In 1991, Ahmed joined the Mohajir Qaumi Movement (MQM), a student movement that defends the rights of Mohajirs, Urdu-speaking Muslims in Pakistan. Compl. ¶ ¶ 1, 35. At that time, Ahmed collected donations for the organization and volunteered his time to disseminate the organization's political beliefs. Compl. ¶ 35.
In 1997, Ahmed fled from Pakistan to the United States and sought asylum on the basis of government persecution for his involvement with the MQM. Compl. ¶ 35. During both his asylum interview and immigration hearing, Ahmed fully disclosed his involvement with and work on behalf of the MQM. Compl. ¶ 36. On December 2, 1998, an immigration judge
granted his request for asylum. Compl. ¶ ¶ 36, 38.
After an initial denial on unrelated grounds, on February 14, 2006, Ahmed filed a Form I-485 application for adjustment of immigration status to legal permanent resident. Compl. ¶ ¶ 39-41. On February 13, 2008, the United States Citizenship and Immigration Services (" USCIS" ) denied Ahmed's application on the basis that he was a current member of the MQM-A. Compl. Ex. 5, at 3. UCSIS found that the MQM, and its factions the MQM-A and MQM-H, met the contemporary definition of an undesignated or " Tier III" terrorist organization under the Immigration and Naturalization Act (" INA" ). Compl. Ex. 5, at 4; see 8 U.S.C. § 1182(a)(3)(B)(vi)(III). Although the immigration judge that had granted Ahmed asylum had found him admissible, Ahmed was now inadmissible as an alien who " has engaged in a terrorist activity," 8 U.S.C. § 1182(a)(3)(B)(i)(I), and an alien who is a representative of a " group that endorses or espouses terrorist activity," 8 U.S.C. § 1182(a)(3)(B)(i)(IV). Id. Since the time of Ahmed's grant of asylum in 1998, the USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 272 (2001), and the REAL ID Act, Pub. L. No. 109-13, 119 Stat. 302 (2005), expanded the terrorism-related grounds under which aliens may be deemed inadmissible. Additionally, the Consolidated Appropriations Act of 2008 (" CAA" ), Pub. L. No. 110-161, 121 Stat. 1844 (2008), amended the authority of the Secretary of Homeland Security to exempt individuals and organizations from certain terrorist-related inadmissibility grounds under 8 U.S.C. § 1182(d)(3)(B)(i). Def. Mot. Ex. 1 ¶ 11.
Ahmed requested that UCSIS reopen his case, and on April 30, 2008, USCIS agreed to do so. Compl. Ex. 6. USCIS simultaneously placed Ahmed's application on administrative hold pursuant to a series of USCIS policy memoranda setting forth procedures for applications that may potentially benefit from the Secretary of Homeland Security's exemption authority. Compl. Ex. 6; Def. Mot. Ex. 1 ¶ 20-22; Def. Mot. Ex. 2-4. Ahmed's application remains on hold today. Ahmed alleges that during this time he has been unable to travel freely, unable to bring his family members to the United States, and subject to unfounded suspicion from friends who question why he is not yet a permanent resident. Compl. ¶ ¶ 7, 50. This delay also impacts Ahmed's ability to seek United States citizenship. Compl. ¶ 5l; see 8 U.S.C. § 1427(a) (providing that a permanent resident may not apply for citizenship until he or she has resided continuously in the United States for five years preceding the date of the filing of his or her application).
Ahmed seeks relief on three counts. The Complaint's first two counts allege that Defendants' continued hold on his application constitutes unlawful withholding of adjudication and unreasonable delay in violation of the INA, 8 U.S.C. § 1101 et seq.; the Administrative Procedures Act (" APA" ), 5 U.S.C. § § 555(b) and 706; and U.S. obligations under international law. Ahmed seeks an injunction requiring Defendants to adjudicate his application on or before 30 days from the Court's judgment in the case. Pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, Ahmed also seeks a declaratory judgment that he is eligible for adjustment of status. In the alternative, he seeks an injunction preventing Defendants from further delaying review of his case for an individualized exemption and a declaratory judgment that
he is eligible for consideration for an individualized exemption. He seeks the same relief under the mandamus statute, 28 U.S.C. § 1361. The third count of the Complaint alleges that withholding adjudication of his application, including the failure to hold a hearing on the issue of his inadmissibility, is a denial of due process under the Fifth Amendment of the U.S. Constitution.
Defendants move to dismiss Ahmed's complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), contending that USCIS's decision to hold his adjustment of status application in abeyance is a discretionary decision that falls outside of the Court's jurisdiction under the INA's jurisdiction-stripping provisions at 8 U.S.C. § 1252(a)(2)(B)(ii). Defendants also move to dismiss on the basis of failure to state a claim upon which relief may be granted under Federal Rule of Civil Procedure 12(b)(6) because there is no due process right to a discretionary immigration benefit and because the delay in this case has not prejudiced Ahmed. In the alternative, Defendants move for summary judgment as a matter of law because the delay is not unreasonable.
I. MOTION TO DISMISS
A. Legal Standard
1. Rule 12(b)(1) Standard
A federal district court has limited subject matter jurisdiction. Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of a complaint for lack of subject matter jurisdiction over the subject matter. A Rule 12(b)(1) challenge may be either a factual or facial challenge to the complaint. See Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3rd Cir. 1977). In the case of a factual challenge, the court is free to consider and weigh evidence outside the pleadings to resolve factual issues bearing on jurisdiction and to satisfy itself as to the existence of its power to hear the case. See id. Therefore, " no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id. The plaintiff has the burden of proving that jurisdiction exists. See Mortensen, 549 F.2d at 891.
2. Rule 12(b)(6) Standard
In deciding a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6), a court must " accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotation marks omitted).
To survive dismissal, a complaint must allege facts sufficient to " raise a right to relief above the speculative level." Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). " Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Rather, " a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. (internal quotation marks omitted). " A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
B. Ahmed's Claims under the APA
Ahmed first alleges that Defendants' continued hold on his adjustment application constitutes unlawful withholding of adjudication and ...