Beshir v. Holder
853 F. Supp. 2d 1
D.D.C.2011Background
- Beshir, an Ethiopian asylee, seeks to compel adjudication of her adjustment of status to permanent resident; action brought under APA, Mandamus Act, and Declaratory Judgment Act.
- USCIS placed her adjustment application on hold in 2008 under terrorism-related inadmissibility policies while awaiting potential exemptions.
- March 2008 and February 2009 USCIS policy memoranda guided hold-and-review procedures for cases involving terrorist-related grounds; hold was to be lifted only with guidance.
- Her February 2008 denial was based on providing material support to the Oromo Liberation Front (OLF), deemed an undetermined terrorist organization under the statute.
- Since 2008, USCIS has repeatedly indicated the case remains on hold and has not issued a disposition or adjudication.
- The court analyzes subject-matter jurisdiction under the INA, APA, and related regulations to determine if review is proper and if summary judgment is appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether INA 1252(a)(2)(B)(ii) strips the court’s jurisdiction. | Beshir argues the provision does not apply to inaction. | Defendants contend the provision strips review of discretionary actions. | Court holds jurisdiction not barred; statute not “specified” to bar review. |
| Whether the APA permits review of agency delay/inaction. | Plaintiff asserts unreasonable delay is reviewable. | Defendants argue action is discretionary and review is precluded. | Court confirms APA review available where there is a non-discretionary duty and lawful standard. |
| Whether the court can review compliance with 8 C.F.R. § 103.2(b)(18) governing holds. | Plaintiff asserts the regulation creates a non-discretionary duty and review is proper. | Defendants rely on discretion inherent in hold decisions. | Court has jurisdiction to review adherence to §103.2(b)(18) procedures. |
Key Cases Cited
- Kucana v. Holder, 130 S. Ct. 827 (2010) (interprets ‘specified under this subchapter’ for jurisdiction-stripping)
- Liu v. Novak, 509 F. Supp. 2d 1 (D.D.C. 2007) (discusses narrow reading of §1252(a)(2)(B)(ii) and review limits)
- Orlov v. Howard, 523 F. Supp. 2d 30 (D.D.C. 2007) (delay in adjudication not always reviewable without standards)
- Singh v. Napolitano, 710 F. Supp. 2d 123 (D.D.C. 2010) (reliance on Orlov but addresses §1252(a)(2)(B)(ii) applications)
- Heckler v. Chaney, 470 U.S. 821 (1985) (review of agency discretion; meaningful standards required)
- Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004) (agency action review related to statutory deadlines)
- Califano v. Sanders, 430 U.S. 99 (1977) (jurisdiction under APA supports review of federal action)