Seydi v. US CITIZENSHIP AND IMMIGRATION SERVICES
779 F. Supp. 2d 714
E.D. Mich.2011Background
- Seydi filed a mandamus action to compel USCIS to adjudicate his I-485 application for adjustment of status.
- He is a Senegalese national who was granted asylum in 2004 and applied to adjust status in 2005; as of March 2010 his application remained pending.
- USCIS repeatedly told Seydi the case was on hold due to potential inadmissibility under 8 U.S.C. § 1182(a)(3)(B) and possible discretionary exemptions under the CAA.
- The Consolidated Appropriations Act of 2008 authorized discretionary exemptions from terrorism-related inadmissibility; USCIS issued a March 26, 2008 policy memo delaying decisions in such cases.
- USCIS policy has held Seydi’s case in abeyance while DHS considers whether exemptions apply; the agency asserts the delay is discretionary and lawful.
- The court faces whether it has subject matter jurisdiction to review this discretionary delay under 8 U.S.C. § 1252(a)(2)(B)(ii).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1252(a)(2)(B)(ii) divests jurisdiction over the delay in adjudication. | Seydi argues the delay is inaction reviewable under mandamus and due process. | USCIS argues the matter is discretionary and barred from review under §1252(a)(2)(B)(ii). | Court lacks subject-matter jurisdiction; §1252(a)(2)(B)(ii) forecloses review. |
| Is the challenged delay an 'action' or 'inaction' under §1252(a)(2)(B)(ii)? | Delay constitutes inaction reviewable by mandamus. | Delay reflects the Secretary's ongoing discretionary actions to develop exemptions and regulations. | Delay treated as 'action' entailing review of discretionary authority; barred by §1252(a)(2)(B)(ii). |
| Should Liu v. Novak have controlled court’s approach to delay? | Delay is due to background checks; Liu supports review of absence of decision. | Liu is distinguishable; here delay results from policy-driven discretionary regulatory activity. | Court follows Singh and distinguishes Liu; finds §1252(a)(2)(B)(ii) bars review. |
Key Cases Cited
- Singh v. Napolitano, 710 F. Supp. 2d 123 (D.D.C. 2010) (holding review barred when USCIS holds adjustment applications in abeyance under discretionary memo)
- Liu v. Novak, 509 F. Supp. 2d 1 (D.D.C. 2007) (distinguished; delay due to FBI checks not actionable discretion)