12 F. Supp. 3d 1027
E.D. Ky.2014Background
- Hosseini, a Kentucky resident, filed a pro se complaint on March 26, 2013 seeking mandamus to decide his Form I-485 filed April 19, 2001.
- USCIS placed Hosseini’s application on adjudicatory hold due to alleged inadmissibility grounds tied to MEK/FEK, delaying decision for over a decade.
- Hosseini is an Iranian asylee derivative; USCIS determined MEK/FEK engaged in terrorist activity and Hosseini allegedly provided material support.
- USCIS acknowledges no decision has been made since 2008; the hold is tied to evaluating discretionary exemptions under 8 U.S.C. § 1182(d)(3)(B)(i).
- The case involves whether § 1252(a)(2)(B)(ii) divests jurisdiction, and whether the APA requires adjudication within a reasonable time under TRAC-like analysis.
- Court ultimately grants Hosseini summary judgment, holding the delay unreasonable and ordering adjudication within 60 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1252(a)(2)(B)(ii) bars review of USCIS’s pace of adjudication | Hosseini argues no statutory bar to review; delay is non-discretionary duty. | Defendants contend §1252(a)(2)(B)(ii) excludes discretionary pace decisions. | Court rejects jurisdictional bar; retains review. |
| Whether USCIS’s adjudicatory hold is reviewable and constitutes improper delay | Hosseini seeks mandamus to compel action due to nondiscretionary duty to decide. | Hold is discretionary, not subject to mandamus or APA relief. | Hold is reviewable; mandamus available to compel adjudication. |
| Whether the 12+ year delay is unreasonable under the APA | Delay is unreasonable as a matter of law under 5 U.S.C. §555(b) and §706(1). | Delay is not unreasonable given need to assess inadmissibility exemptions. | Delay deemed unreasonable; relief granted. |
| What remedy is appropriate for unreasonable delay | Relief should require immediate adjudication of the I-485. | Adjudication may be delayed due to exemptions; no concrete remedy proposed. | Order to adjudicate within 60 days. |
| Whether court has subject-matter jurisdiction to review under Kucana and related authority | Court has jurisdiction to review non-discretionary duty to act. | Review should be barred under jurisdiction-stripping provisions. | Court has jurisdiction; proceeds to merits. |
Key Cases Cited
- Liu v. Novak, 509 F. Supp. 2d 1 (D.D.C. 2007) (INA discretionary pace not expressly stated; non-discretionary duty to process remains)
- Geneme v. Holder, 935 F. Supp. 2d 184 (D.D.C. 2013) (TRAC factors; delays over years can be unreasonable)
- Kucana v. Holder, 558 U.S. 233 (Supreme Court 2010) (§1252(a)(2)(B)(ii) not implicated unless discretionary authority is expressly granted by statute)
- Al-Rifahe v. Mayorkas, 776 F. Supp. 2d 927 (D. Minn. 2011) (Non-discretionary duty to adjudicate; pacing not expressly discretionary)
- Kashkool v. Chertoff, 553 F. Supp. 2d 1131 (D. Ariz. 2008) (TRAC factors support finding unreasonable delay)