ARJUN DHAKAL v. JEFFERSON B. SESSIONS III, Attorney General of the United States, et al.
No. 17-3377
United States Court of Appeals For the Seventh Circuit
July 13, 2018
ARGUED MAY 22, 2018 — DECIDED JULY 13, 2018
Appeal from the United States District Court for the Western District of Wisconsin.
No. 3:17-cv-00010-jdp — James D. Peterson, Chief Judge.
Before FLAUM and RIPPLE, Circuit Judges, and GETTLEMAN, District
RIPPLE, Circuit Judge. Arjun Dhakal, a native and citizen of Nepal, brought this action against the Attorney General and other executive branch defendants under the Administrative Procedures Act (“APA“),
The district court concluded that it lacked jurisdiction over his claim. Although we conclude that there is no jurisdictional bar, we agree with the Government that the decision Mr. Dhakal challenges is not a final agency action and, therefore, he is not entitled to relief under the APA. The statutory scheme for adjudication of asylum claims by the agency must be allowed to take its course. We therefore affirm the district court‘s judgment dismissing the case, but modify it to reflect that it is on the merits.
I
A.
According to his asylum application, Mr. Dhakal and his family were members of the Nepali Congress, a political party that he describes as supporting nationalism, democracy, socialism, and nonviolence. From the mid-1990s through late 2006, the Maoist party emerged and began targeting its opposition, including the Nepali Congress. In 2006, the parties signed a Comprehensive Peace Accord, but, without a mechanism for enforcement, the accord did not deter the Maoists. They created a Young Communist League and began to take more aggressive actions. Mr. Dhakal continued his opposition work, including working with the United States Agency for International Development and other international organizations for peace.
In 2012, he received a letter from the Maoists on official letterhead. The letter instructed him to cease his activities. A few weeks later, four men stopped him as he was riding home on his motorbike. They verbally abused him and told him that the Maoist party had sent them to break his leg. They hit him with a bamboo cane and smashed his motorbike; they also told him that if he did not cease his opposition work, “next time, he will be finished.”1 A forest ranger discovered Mr. Dhakal and transported him to the hospital. A local newspaper reported the attack. Despite this incident, Mr. Dhakal continued his activities, and in April 2013, he received another letter threatening him and his family.
In May 2013, the University of Rhode Island invited Mr. Dhakal to participate in a course in nonviolent conflict resolution because of his “impressive record of accomplishments and activism.”2 He accepted the invitation, which included a scholarship and travel expenses, and traveled to the United States in June 2013.
After he left Nepal, Maoists went to his home and threatened his wife, who subsequently fled to her parents’ home with their children. Mr. Dhakal determined that he could not return to Nepal and therefore applied for asylum in the United States in August 2013, two months after his entry.
In April 2015, while Mr. Dhakal‘s asylum application remained pending, Nepal suffered a 7.8 magnitude earthquake.
In June 2016, after Mr. Dhakal received TPS, the asylum office of United States Citizenship and Immigration Services interviewed him in connection with his application for asylum. In August, the Director of the Chicago Asylum Office issued a Notice of Intent to Deny the application.4 Principally, the asylum officer found that Mr. Dhakal was not credible based on internal inconsistencies and a lack of detail in his responses. The officer also concluded that the two threatening letters and one beating did not rise to the level of past persecution and that Mr. Dhakal had not shown a reasonable possibility of future persecution. Mr. Dhakal submitted a rebuttal, but DHS was not persuaded. In September 2016, the Director issued a final denial. The final denial letter informed Mr. Dhakal that “[b]ecause you are maintaining valid ... temporary protected (TPS) status, your asylum application will not be referred to an immigration judge for adjudication in removal proceedings before the U.S. Department of Justice, Executive Office for Immigration Review.”5
B.
In January 2017, Mr. Dhakal brought this action in the United States District Court for the Western District of Wisconsin, seeking a declaratory judgment that the Director‘s denial of his asylum claim was contrary to law. The Government moved to dismiss for lack of subject matter jurisdiction and for failure to state a claim, contending that Mr. Dhakal could not proceed in federal court without first exhausting his administrative remedies. After briefing by the parties, the district court granted the Government‘s motion.
In a brief opinion, the court held that Mr. Dhakal‘s suit was barred by Kashani v. Nelson, 793 F.2d 818 (7th Cir. 1986). There, we dismissed a claim brought by an alien who also challenged an initial denial of his asylum application. We held that he was required to pursue administrative remedies. The district court acknowledged that Mr. Dhakal had no further remedies available to him at the time of his action because the Department of Homeland Security had not placed him in removal proceedings and those proceedings were the sole means within the executive branch for review of an adverse asylum decision. The court was sympathetic to Mr. Dhakal‘s circumstances and further noted that a later case, Iddir v. INS, 301 F.3d 492, 498 (7th Cir. 2002), could be read to undermine Kashani‘s holding. It nevertheless concluded that Kashani still appeared to govern. Mr. Dhakal unsuccessfully moved for reconsideration and now appeals.
Subsequent to the filing of briefs in the appeal, the current Secretary of Homeland
The Government brought the end of TPS for Nepal to our attention in a 28(j) letter. It stated:
This development regarding Mr. Dhakal‘s TPS does not substantially alter the arguments and issues before this Court. Mr. Dhakal‘s suit is still premature given the other administrative remedies he may pursue. As was true in Massignani v. INS, 438 F.2d 1276 (7th Cir. 1971) (per curiam), Kashani v. Nelson, 793 F.2d 818 (7th Cir. 1986), and McBrearty v. Perryman, 212 F.3d 985 (7th Cir. 2000), Mr. Dhakal can still obtain the relief he seeks—asylum—during whatever removal proceedings may be brought against him after his TPS expires. App. R. 39 at 2.
II
DISCUSSION
We review de novo the district court‘s order dismissing this case for lack of jurisdiction. Sapperstein v. Hager, 188 F.3d 852, 855 (7th Cir. 1999). We “may affirm the district court‘s dismissal on any ground supported by the record, even if different from the grounds relied upon by the district court.” Slaney v. The Int‘l Amateur Athletic Fed‘n, 244 F.3d 580, 597 (7th Cir. 2001). Before we consider the applicability of the APA and the narrow question now before the court, we pause to place the issue in its proper statutory context.
A.
Mr. Dhakal‘s case implicates two separate legislative protections in our Nation‘s immigration laws. Each one protects a separate group of vulnerable aliens from involuntary return to their country of nationality. We begin with a description of each of these forms of protection and the processes by which they are obtained.
The first is asylum, which provides a right to remain in the United States to certain individuals who meet the definition of a refugee.
A grant of asylum at either the affirmative or defensive stage is for an indefinite period.
The other form of protection relevant to the present appeal is TPS. TPS protects nationals of countries that are in a present state of armed conflict or that are experiencing a disruption in living conditions as a result of a natural or environmental disaster.
TPS protects its recipients from removal only while the designation is valid; it affords no pathway to family reunification, permanent residency, or citizenship. Furthermore, the agency views aliens in TPS as remaining subject, as a general matter, to removal proceedings. Matter of Sosa Ventura, 25 I. & N. Dec. 391, 393 (BIA 2010) (holding that an alien in TPS “is protected from execution of a removal order during the time her TPS status is valid, but she remains removable based on the charge of inadmissibility in the Notice to Appear“).8 An alien may apply for TPS
With this understanding of the two separate protective mechanisms of immigration law involved in Mr. Dhakal‘s case, we now proceed to his claim that the district court may review the administrative denial of his asylum claim.
B.
The most common route for federal court review of immigration decisions is not under the APA, but on petition for review of a final order of removal in the appropriate court of appeals. See
The district court dismissed the action under
Because the district court had jurisdiction to consider the claim, we proceed to
C.
The Government contends that Mr. Dhakal‘s case should be dismissed because his challenge is to a nonfinal agency decision and therefore is not reviewable under the APA. “Where, as here, the actions of the agency are not made reviewable by a specific statute, the APA allows judicial review of the actions by federal agencies only over ‘final agency action for which there is no other adequate remedy in a court.‘” Home Builders Ass‘n of Greater Chi. v. U.S. Army Corps of Eng‘rs, 335 F.3d 607, 614 (7th Cir. 2003) (quoting
Finality is, therefore, a necessary precondition to our ability to review agency action under the APA.
As a general matter, two conditions must be satisfied for agency action to be ‘final‘: First, the action must mark the consummation of the agency‘s decisionmaking process—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.
Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (citations omitted) (internal quotation marks omitted). Courts have interpreted the finality requirement of the APA in a “flexible” and “pragmatic way.” Abbott Labs. v. Gardner, 387 U.S. 136, 149, 150 (1967), abrogated in part on other grounds by Califano, 430 U.S. at 105. “An agency action is not final if it is only ‘the ruling of a subordinate official,’ or ‘tentative.’ The core question is whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties.” Franklin v. Massachusetts, 505 U.S. 788, 797 (1992) (citation omitted) (quoting Abbott Labs., 387 U.S. at 149).
We begin with the first question: whether the decision of the Director of the Chicago Asylum Office marks the consummation of the agency‘s decisionmaking process. We conclude that it does not. Kashani persuasively analyzed the statutory and regulatory scheme for administrative review of asylum claims and concluded that the executive branch process for review of asylum claims is carefully crafted and detailed. See generally Kashani v. Nelson, 793 F.2d 818 (7th Cir. 1986). Although, as Mr. Dhakal notes, there have been significant structural changes to the agencies involved and to the process, the basic thrust of review of asylum claims remains the same. Congress created a “systematic scheme” for processing asylum claims that was motivated by “a desire to revise and regularize the procedures governing the admission of refugees [and] to eliminate the piecemeal approach.” Id. at 825 (second alteration in original) (emphasis removed) (quoting INS v. Stevic, 467 U.S. 407, 425 (1984)).
An alien need not pursue an affirmative asylum process, as Mr. Dhakal did. Once the Department seeks removal and asylum is asserted as a defense, the immigration court “develops the more extensive factual record” for review by the Board and, where appropriate, our ultimate review. Id. at 826. The process recognizes that immigration judges and the Board possess expertise in these matters and thus “should be given the first chance,” before the federal courts, “to apply that expertise.” Id. (quoting McKart v. United States, 395 U.S. 185, 194 (1969)). Moreover, if Mr. Dhakal is denied asylum at the conclusion of this process by the immigration courts, only the decision of the Board, which speaks with final authority for the executive branch, forms the basis for our review. The Director‘s decision is, in that respect, “more like a tentative recommendation than a final and binding determination,” or “the ruling of a subordinate official” when viewed in light of the intended, complete administrative process. Franklin, 505 U.S. at 798 (quoting Abbott Labs., 387 U.S. at 151).
We conclude that the executive branch simply has not completed its review of Mr. Dhakal‘s claims and consequently has not made a final decision regarding his immigration status and eligibility for asylum.10 See Jama, 760 F.3d at 496 (“Congress has delegated to specific government agencies the task of enforcing immigration laws and determining aliens’ immigration statuses. The agencies’ decisionmaking process consummates when they issue a final decision regarding an alien‘s immigration status. ... [T]he operative question in this case for purposes of the APA is whether there is a final decision on Jama‘s immigration status.” (emphasis in original)).
We also conclude that the decision is not one from which “legal consequences will flow.” Bennett, 520 U.S. at 178. That is, its effect on Mr. Dhakal is to keep in place the status quo for the time being. “[T]he finality requirement is concerned with whether the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury ... .” Williamson Cty. Reg‘l Planning Comm‘n v. Hamilton Bank of Johnson City, 473 U.S. 172, 193 (1985) (emphasis added). We recognize that, were Mr. Dhakal placed in removal proceedings while his TPS was valid, and were he successful in those proceedings in proving his asylum claim, he would obtain benefits beyond those afforded by his temporary status. Specifically, he would obtain long-term certainty as to his status, a path toward legal permanent residency and citizenship, and the ability to apply for his immediate family to join him in the United States. The lack of a present opportunity to seek such additional benefits is no doubt a hardship to Mr. Dhakal, but the decision he seeks to have reviewed merely delays his ability to pursue those ancillary benefits of asylum; it does not definitively deny them. Moreover, the present denial does not immediately affect his ability to remain in the United States.
Because the agency‘s decision on Mr. Dhakal‘s asylum claim is not a final agency action within the meaning of the APA, the district court properly dismissed the case. The agency‘s decision to delay further review by not bringing removal proceedings against Mr. Dhakal is a practical decision of governing, and it serves important purposes. It allows aliens such as Mr. Dhakal time to build a stronger asylum claim, by providing him with additional time to acquire supporting documents when country conditions render that task difficult, if not impossible. It also affords Mr. Dhakal time
Moreover, TPS is not mandatory for eligible aliens. Mr. Dhakal sought and received this status, which has the enormous benefit of protecting him temporarily from removal. It also, however, carries the consequence of this holding period, which slows but does not remove his access to intra-agency review. Mr. Dhakal was not required to obtain or renew this status and its attendant benefits and drawbacks.
Conclusion
The decision of the Director of the Chicago Asylum Office that forms the basis for Mr. Dhakal‘s complaint is not a final agency action for purposes of the APA. We therefore affirm the judgment of the district court dismissing Mr. Dhakal‘s complaint, modifying it to reflect that the decision is on the merits rather than jurisdictional.
AFFIRMED