Beshir v. Holder
10 F. Supp. 3d 165
D.D.C.2014Background
- Beshir, an Ethiopian asylum recipient, filed spring 2004 Form I-485 to adjust to lawful permanent resident; USCIS denied Feb. 28, 2008 under INA §212(a)(3)(B)(i)(I) for terrorist activity based on OLF association.
- USCIS placed her case on hold in 2008 after adopting a policy arising from the 2008 USCIS Memorandum, tied to expanded exemption authority under 8 U.S.C. § 1182(d)(3)(B)(i).
- The 2008 policy instructed withholding adjudication of cases that could benefit from future exemptions; Beshir’s case was held pending potential exemption for which she might qualify.
- The 2009 USCIS Memorandum ordered cases on hold to be elevated through headquarters if requested; plaintiff’s attorney sought action Jan. 31, 2010, but there was no evident elevation.
- Over the years DHS issued exemptions for other groups, but no exemption applies to Beshir; adjudication remains on hold and no decision issued as of this opinion.
- Beshir amended suit seeking a 90-day compel-to-adjudicate order and to force application of the 2009 Memorandum; court dismisses for lack of subject-matter jurisdiction, and finds the motion for summary judgment moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction to review pace of adjudication | Beshir seeks review under APA/mandamus and 1252; pace is reviewable. | pace is discretionary under statute; INA §1252(a)(2)(B) bars review of discretionary action. | No jurisdiction; pace is discretionary and reviewable under neither APA nor mandamus. |
| Whether §1252(a)(2)(B)(ii) precludes review of delay | Delay constitutes reviewable action not yet exempted by statute. | Discretionary pace falls within preclusion; no nondiscretionary duty. | Precluded; pace of adjudication falls within discretionary action barred from review. |
| Whether §1159(b) and §1255(a) confer discretion to regulate pace of adjudication | These provisions do not impinge on court review of delay. | They confer broad discretion over the adjudicatory process and timing. | Discretionary pace; no basis for judicial review. |
| Whether the 2009 USCIS Memorandum is binding and enforceable | Memorandum creates a mandatory duty to elevate cases through HQ when on hold. | Memorandum is internal policy guidance, not a binding rule. | Not binding; no mandamus/APA obligation to apply. |
Key Cases Cited
- Kucana v. Holder, 558 U.S. 233 (2010) (INA §1252(a)(2)(B) applies to discretionary agency decisions; only statutes confer such discretion)
- INS v. St. Cyr, 533 U.S. 289 (2001) (strong presumption of judicial review; immigration context requires deference)
- Heckler v. Chaney, 470 U.S. 821 (1985) (no judicial review where statute provides no meaningful standard for agency action)
- Debba v. Heinauer, 366 F. App'x 696 (8th Cir. 2010) (court addressed discretionary pace and preclusion, indicating lack of jurisdiction under INA)
- Geneme v. Holder, 935 F. Supp. 2d 184 (D.D.C. 2013) (dismissal of delay claim where INA grants discretionary authority over process)
- Sierra Club v. Jackson, 648 F.3d 848 (D.C. Cir. 2011) (absence of deadlines supports discretion in agency processing)