321 F. Supp. 3d 19
D.C. Cir.2018Background
- Plaintiff Manouchehr Jafarzadeh, an Iranian national who has lived in the U.S. since 1979, applied for adjustment of status as the immediate relative of his daughter in 2010; his application remained pending for years and he was denied in 2017 and placed in removal proceedings.
- Plaintiffs allege USCIS funneled certain applications into a secret program called the Controlled Application Review and Resolution Program (CARRP), created in 2008, which they say mandates delay or denial based on overly broad "national security" criteria and deference to watchlists maintained by other agencies (e.g., the FBI’s TSDB).
- Plaintiffs brought claims seeking (a) re-adjudication of Jafarzadeh’s application exclusive of CARRP, (b) separation-of-powers and constitutional relief, (c) substantive and procedural APA relief (including failure to use notice-and-comment), and (d) a due-process claim by plaintiff Karami (spouse).
- The government moved to dismiss on grounds including mootness, alleged jurisdictional channeling to immigration courts (8 U.S.C. § 1252 provisions), lack of standing, and statute-of-limitations barriers; the Court previously resolved a first motion and plaintiffs amended their complaint.
- The Court concludes it has Article III jurisdiction and denies dismissal of the substantive APA challenge to CARRP (Count III) and the APA notice-and-comment claim (Count V), but dismisses (1) Count I (request for decision exclusive of CARRP as duplicative), (2) Count II (separation-of-powers claim), and (3) Count IV (spouse’s due-process claim) for failure to state a cognizable constitutional claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness | Plaintiffs still have a live procedural injury from CARRP affecting travel, work, and removal risk; court relief could prompt reconsideration. | USCIS adjudication and availability of de novo IJ review render the case moot or advisory. | Not moot: plaintiffs allege ongoing procedural injury and judicial relief could provide an additional avenue for redress. |
| Jurisdictional channeling under §1252 (including §1252(g)) | McNary-type collateral challenge to agency procedure is not channeled to immigration courts; §1252 does not bar district-court review of CARRP. | §1252(g) and other channeling provisions strip courts of jurisdiction over claims related to removal/adjudication. | §1252(g) and related provisions do not bar these collateral challenges; district court retains jurisdiction. |
| Article III standing / redressability | Procedural violation caused concrete injuries (loss of travel/work, family unity); court-ordered remand could produce relief. | Any relief is illusory because IJ/removal process can give the same review; injury speculative. | Plaintiffs plausibly allege procedural injury and redressability sufficient to survive Rule 12(b)(1). |
| Statute of limitations (28 U.S.C. §2401(a)) | CARRP was secret; discovery rule delays accrual until public disclosure (≈2012); thus claims timely; substantive APA challenges may be brought despite elapsed time. | Challenges to an old agency program are time-barred. | Applying discovery rule and D.C. Circuit precedent, claims are timely; court notes tension about whether §2401(a) is jurisdictional but finds timely accrual. |
| Substantive APA final-act/merits (Count III) | CARRP is a final agency action that changes adjudicatory standards and unlawfully broadens "national security" criteria; therefore subject to APA review and may be arbitrary-and-capricious or ultra vires. | CARRP is internal, nonfinal adjudicatory protocol that does not change statutory requirements or mandate outcomes. | CARRP plausibly constitutes final agency action and may alter legal rights; Count III allowed to proceed. |
| Notice-and-comment rulemaking (Count V) | CARRP is a legislative rule with substantive effects that required notice-and-comment; procedural-rule exception is narrow. | CARRP is an internal procedural guidance exempt from §553 notice-and-comment. | Given allegations and CARRP materials, plaintiffs plausibly allege CARRP is legislative in effect; Count V survives dismissal. |
| Due process (spouse) (Count IV) | Karami alleges deprivation of liberty interests (family unity, marriage, right to remain) without notice or ability to challenge CARRP placement. | D.C. Circuit precedent says spouse has no constitutional right violated by husband’s deportation; no protected liberty interest here. | Count IV dismissed: Swartz precedent controls in this circuit and forecloses the claimed substantive/procedural liberty interest. |
Key Cases Cited
- McNary v. Haitian Refugee Ctr., 498 U.S. 479 (1991) (district-court review permitted for collateral challenges to immigration procedures outside removal-review channeling)
- Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) (§1252(g) limited to three enumerated actions and must not be read broadly)
- Bennett v. Spear, 520 U.S. 154 (1997) (two-part test for final agency action reviewability under the APA)
- Massachusetts v. EPA, 549 U.S. 497 (2007) (procedural-right injuries can confer standing where relief could prompt agency reconsideration)
- Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477 (2010) (statutory scheme and intent relevant to jurisdictional limits on judicial review)
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (injury-in-fact requires concrete and particularized, not merely procedural, harm)