Shashi GENEME, Plaintiff, v. Eric H. HOLDER, Jr., et al., Defendants.
Civil Action No. 10-757(RC).
United States District Court, District of Columbia.
March 31, 2013.
CONCLUSION
Garmany has not shown by a preponderance of the evidence that the hearing officer erred in concluding that DCPS did not fail to implement D.G.‘s January IEP and that Hamilton is an appropriate placement for implementing D.G.‘s February IEP. Therefore, Garmany‘s motion for summary judgment will be denied and the District‘s cross-motion for summary judgment will be granted. An appropriate Order accompanies this memorandum opinion.
William Charles Silvis, U.S. Department of Justice, Washington, DC, for Defendants.
MEMORANDUM OPINION
RUDOLPH CONTRERAS, District Judge.
An Ethiopian citizen, Shashi Geneme was granted asylum in 2002. She applied to adjust her status to that of a lawful permanent resident—that is, a green card holder—in 2005. Pursuant to a national policy, U.S. Citizenship and Immigration Services (“USCIS” or “the agency”), an agency within the Department of Homeland Security, has placed her application on hold. In this suit, Ms. Geneme seeks an order that USCIS adjudicate her application. The agency has moved to dismiss her complaint for lack of subject matter jurisdiction and, in the alternative, for summary judgment.
I. BACKGROUND
Shashi Geneme was born in Addis Ababa, Ethiopia. Compl. ¶ 13. In 2002, she came to the United States on a B-2 visа and applied for asylum, which she received that same year. Id. On her asylum application, Ms. Geneme indicated that she had financially supported the Oromo Liberation Front, an armed group that advocates for the creation of a separate state for ethnic Oromos. Decl. of Naboone J. Puripongs Jaeger, May 25, 2012, at ¶¶ 11-12. According to published reports, the Front has used guerilla tactics against Ethiopian government troops and detonated bombs that have killed and injured civilians. Id. ¶ 11.
In 2005, Ms. Geneme submitted an I-485 application for permanent residence. Compl. ¶ 13. In 2006, Ms. Geneme submitted fingerprints and other information that USCIS needed to process her application. Id. ¶¶ 17-18. A long silence followed. In 2008, she began to contact USCIS about the delay in processing her application. Id. ¶ 19. Two letters in early 2009 informed her that USCIS was “actively processing this case.” Compl., Ex. H (Letter from USCIS, Jan. 20, 2009); id., Ex. I (Letter from USCIS, Apr. 28, 2009). In December of that year she received another letter, which stated that:
Your case is on hold because you appear to be inadmissible under [§] 212(a)(3)(B) of the [
Immigration and Nationality Act ], and USCIS currently has no authority not to аpply the inadmissibility ground(s) to which you appear to be subject. Rather than denying your application based on inadmissibility, we are holding adjudication in abeyance while the Department of Homeland Security considers additional exercises of the Secretary of Homeland Security[‘]s discretionary exemption authority. Such an exercise of the exemption authority might allow us to approve your case.
Id., Ex. K (Letter from USCIS, Dec. 11, 2009). Six months later, Ms. Geneme filed this suit.
In March 2008, the deputy director of USCIS issued a memorandum in response to that grant of statutory authority. The memo stated that:
The Secretary [of Homeland Security] has not exercised his discretionary authority since pаssage of the CAA, and the Department of Homeland Security (DHS) currently is considering several groups and categories of cases as possible candidates for additional terrorist-related inadmissibility provision exemptions. Because new exemptions may be issued by the Secretary in the future, until further notice adjudicators are to withhold adjudication of cases in which the only ground(s) for referral or denial is a terrorist-related inadmissibility provision(s) and the applicant falls within one or more of the below categories:
2. Applicants who are inadmissible under the terrorist-related provisions of the INA based on any activity or association that was not under duress relating to any ... Tier III organization [other than those organizations specifically named by the CAA] ....
Adjudicators may also raise through their local chain of command to appropriate Headquarters personnel any case which presents compelling circumstances that warrant consideration of a new or individualized exemption that would not otherwise be covered by the above hold instructions. . . .
Adjudicators will receive additional guidance on continued or lifted holds on these cases as decisions are reached at the DHS level.
Compl., Ex. O (Memo. of Mar. 26, 2008), at 2-3. In early 2009, USCIS put out additional guidance but did not lift the adjudication hold on cases such as Ms. Geneme‘s. Instead, the agency renewed the requirement that cases involving “[a]pplicants who are inadmissible under the terrorist-related provisions of the INA based on any activity or association that was not under duress relating to any Tier III organization, other than those for which an exemption currently exists,” be placed on hоld. Compl., Ex. N (Memo. of Feb. 13, 2009), at 2. An applicant could, however, request that the hold be lifted in her case. “If the adjudicating office receives a request from the beneficiary and/or attorney of record to adjudicate a case on hold per this policy
In August 2012, while the instant motion was pending, the Secretary of the Department of Homeland Security exercised her discretionary authority under
II. LEGAL STANDARD
A. Jurisdiction
This is a court of limited jurisdiction, possessing “only that pоwer authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). The plaintiff bears the burden of establishing the court‘s jurisdiction. Shuler v. United States, 531 F.3d 930, 932 (D.C. Cir. 2008); Moms Against Mercury v. FDA, 483 F.3d 824, 828 (D.C. Cir. 2007). In evaluating the defendants’ motion to dismiss the complaint for lack of jurisdiction under
B. Substantive Standard
When a plaintiff seeks a writ of mandamus under the
III. ANALYSIS
A. Jurisdiction
“[I]n cases brought under
Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, оr any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D),1 and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review—
(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title,2 or
(ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter3 to be in the discretion of the Attorney General or the Secretary of Hоmeland Security, other than the granting of relief under section 1158(a) of this title.4
Many district courts—but, as yet, no courts of appeals—hаve addressed that question, identifying two major elements of the inquiry. First, has USCIS made a
The more difficult question is whether “the authority for” that decision “is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security” that has been transferred to USCIS.
Courts reaching the contrary conclusion distinguish between the agency‘s discretion regarding the substance of an adjustment decision and its authority to make—or not to make—that decision in the first place: As one court has written, “[t]he Court does indeed lack jurisdiction to review a denial of discretionary relief. But failing to make a decision—any decision—is not the same as deciding to deny relief.” Al Jabari v. Chertoff, 536 F.Supp.2d 1029, 1036 (D.Minn. 2008). Two judges in this district havе found that “the ... discretionary authority to withhold adjustment applications is not ‘specified under this subchapter,’” and therefore ruled that jurisdiction over claims that adjudication has been unreasonably delayed are “not barred by the INA‘s jurisdiction-stripping provision.” Beshir, 853 F.Supp.2d at 9; Liu, 509 F.Supp.2d at 7 (“ § 1252(a)(2)(B)(ii) does not apply to all discretionary decisions, but only those decisions ‘the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security.’ ... The subchapter ... ‘does not address, much less specify any discretion assоciated with, the pace of application processing.’ ... Thus, plaintiff‘s claim is not barred by § 1252(a)(2)(B)(ii) ....” (second quotation from Duan v. Zamberry, 2007 WL 626116, at *2 (W.D.Pa. Feb. 23, 2007))); accord Tang v. Chertoff, 493 F.Supp.2d 148, 153-54 (D.Mass. 2007) (“The clear meaning of
That conclusion is supported by the Supreme Court‘s recent decision in Kucana v. Holder, 558 U.S. 233, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010). Kucana also involved the interpretation of § 1252(a)(2)(B)(ii). Calling “specified under this subchapter” the “key words” in § 1252(a)(2)(B), Kucana, 130 S.Ct. at 831, the Court noted that “ § 1252(a)(2)(B)(ii), speaks of authority ‘specified’—not merely assumed or contemplated—to be in the Attorney General‘s discretion. ‘Specified’ is not synonymous with ‘implied’ or ‘anticipated.’” Id. at 834 n. 10. The Kucana Court read § 1252(a)(2)(B)(ii) in the context of § 1252(a)(2)(B)(i), observing that the determinations listed by the earlier provision “are substantive decisiоns made by the Executive in the immigration context as a matter of grace, things that involve whether aliens can stay in the country or not.” Id. at 837 (brackets, citation, ellipses, and internal quotation marks omitted; emphasis added). It noted that the “decisions ... shielded from court oversight by § 1252(a)(2)(B)(ii), are of a like kind.” Id.
Finally, the Kucana Court invoked a well-known canon of construction to dispel “[a]ny lingering doubt about the proper interpretation of
“[T]he title of § 1252(a)(2)(B), ‘Denials of discretionary relief,’ confirms that the provision was not intended to sweep as broadly as defendants contend.” Al Jabari, 536 F.Supp.2d at 1036. “While the ultimate decision to grant or deny an application for adjustment of status is unquestionably discretionary, there exists a non-discretionary duty to act on and process the application.” Dong v. Chertoff, 513 F.Supp.2d 1158, 1165 (N.D.Cal. 2007). “The language of § 1252(a)(2)(B)(ii) ... refers not to ‘discretionary decisions,’ but to acts the authority for which is specified under the INA to be discretionary.” Spencer Enters., Inc. v. United States, 345 F.3d 683, 689 (9th Cir. 2003). For that reason, “[f]ederal appellate courts have ... construed § 1252(a)(2)(B)(ii) narrowly.” Al-Rifahe, 776 F.Supp.2d at 932; see, e.g., Iddir v. INS, 301 F.3d 492, 497 (7th Cir. 2002) (holding that § 1252(a)(2)(B) “only bars review of actual discretionary decisions to grant or deny relief under the enumerated sections”). This court does so as well. Title 8, Chapter 12, Subchapter II does not specify that USCIS shall have discretion to decide whether and when to adjudicate applications for adjustment of status, and so the court retains jurisdiction over Ms. Geneme‘s claim that it has unreasonably delayed the adjudication. The court will therefore proсeed to address the government‘s motion for summary judgment.
B. Claims of Unreasonable Delay
The
(1) the time agencies take to make decisions must be governed by a rule of reason;
(3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake;
(4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority;
(5) the court should also take into account the nature and extent of the interests prejudiced by delay; and
(6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is ‘unreasonably delayed.’
In re United Mine Workers of Am. Int‘l Union, 190 F.3d 545, 549 (D.C. Cir. 1999) (quoting TRAC, 750 F.2d at 80) (citations and quotation marks omitted).
“With regard to the first and second TRAC factors, the APA‘s general reasonableness standard applies in the absence of an explicit timeline in the relevant statutes.” Al-Rifahe, 776 F.Supp.2d at 936 (citing Hassane, 2010 WL 2425993, at *4). The government argues that its decision to place a hold on Ms. Geneme‘s application is reasonable because the process of deciding how to exercise its discretionary authority to exempt supporters of Tier III groups from inadmissibility is painstaking. But this argument presupposes that Ms. Geneme‘s application cannot be processed until a final decision has been made as to whether supporters of the Oromo Liberation Front should be exempted from inadmissibility. USCIS of course has another option: it can deny the application. Indeed, the agency has informed Ms. Geneme that “USCIS currently has no authority not to apply the inadmissibility ground(s) to which you appear to be subject,” but that “[r]ather than dеnying [her] application based on inadmissibility” the agency has decided to “hold[] adjudication in abeyance” in the hopes of eventually resolving the matter in Ms. Geneme‘s favor. Compl., Ex. K (Letter from USCIS, Dec. 11, 2009). Ms. Geneme would apparently prefer any resolution—even an adverse determination—to an indefinite delay. Already her application has been pending for eight years, and on hold for five. She does not argue that the agency‘s evaluation of the Oromo Liberation Front has been unreasonably delayed; rather, she argues that the agеncy has some ongoing obligation to process her application, notwithstanding its uncertainty about the status of the group she has supported.
The court does not doubt that the determination of whether to grant an exemption to Ms. Geneme is “a delicate and difficult task” nor that “[USCIS] is striving to maintain consistency and make reasoned decisions.” Al-Rifahe, 776 F.Supp.2d at 936 (quoting Al Karim v. Holder, 2010 WL 1254840, at *3 (D.Colo. Mar. 29, 2010) (alteration in Al-Rifahe)). But that difficulty does not eliminate “the agency‘s obligation to act on plaintiff‘s application in a reasonably timely manner.” Id. (quoting Al Karim, 2010 WL 1254840, at *3); accord Kashkool v. Chertoff, 553 F.Supp.2d 1131, 1144 (D.Ariz. 2008) (“The lack of a specific timetable does not mean that USCIS can take аn infinite amount of time to process Plaintiff‘s adjustment of status application.”). It should not take eight years to act on an application for permanent residence. Accord Han Cao v. Upchurch, 496 F.Supp.2d 569, 577 (E.D.Pa. 2007) (concluding that “a four-year delay in the review of an application for legal permanent residence is presump-
The third and fifth TRAC factors are closely related in this case. “[D]elays that might be reasonable in the sphere of economic regulation are less tolerable” when Ms. Geneme‘s welfare is at stake, and so the court must consider the “nature and extent of the interests” that she argues have been “prejudiced by the delay.” In re United Mine Workers, 190 F.3d at 549 (quoting TRAC, 750 F.2d at 80). Ms. Geneme argues that she cannot adequately plan for her future without knowing whether or not she will be pеrmitted to adjust her status, because her ability to work and to travel would be so much greater as a permanent resident than they are as an asylee. She asserts—and the court does not doubt—that this uncertainty has a substantial and substantially negative impact on her welfare and her peace of mind. The government, in turn, argues that Ms. Geneme actually benefits from the delay because it allows USCIS to consider the possibility that it should grant her application at a later date rather than simply denying it now. As other courts have noted, Ms. Geneme “undoubtedly ‘understands that [her] application may be denied, but the consequences of the indefinite ... delay in adjudication of [her] application’ are also considerable.” Al-Rifahe, 776 F.Supp.2d at 937 (quoting Al Karim, 2010 WL 1254840, at *4). And Ms. Geneme presumably would not have brought this suit unless she preferred the likelihood that her application would be denied to the uncertainty of not knowing when it would be adjudicated. The court therefore concludes that the third and fifth TRAC factors weigh in Ms. Geneme‘s favor.
Finally, the court considers “the effect of expediting delayed action on agency activities of a higher or competing priority.” In re United Mine Workers, 190 F.3d at 549 (quoting TRAC, 750 F.2d at 80). The government argues that an order requiring the immediate adjudication of Ms. Geneme‘s application would encroach on the discretion that Congress has granted the Secretaries of State and Homeland Security to exempt Tier III terrorist groups from the inadmissibility provisions of the INA. The court is somewhat perplexed by this argument. As two other courts have noted, “[d]efendants provide no reason why plaintiff‘s application cannot be adjudicated immediately, subject to future reopening and review when and if USCIS policies regarding [the Oromo Liberation Front] change.” Al-Rifahe, 776 F.Supp.2d at 937 (quoting Al Karim, 2010 WL 1254840, at *3). Adjudicating Ms. Geneme‘s application would not substantially interfere with the government‘s consideration of the broader issue of whether to issue a blanket exemption to supporters
IV. CONCLUSION
“That classification of the [Oromo Liberation Front] may change at some indeterminate point in the future does not justify leaving plaintiff‘s application in an indefinite state of limbo.” Al-Rifahe, 776 F.Supp.2d at 937 (quoting Al Karim, 2010 WL 1254840, at *3). Ms. Geneme‘s application has been pending for eight years, and on hold for five. The court concludes that, under the six-factor test set out in TRAC, the government is nоt entitled to a judgment that this delay is reasonable. The government‘s motion will therefore be denied.
Ms. Geneme has not moved for a writ of mandamus. USCIS and the Department of Homeland Security appear to be actively considering whether supporters of the Oromo Liberation Front will be eligible for exemptions from inadmissibility under the Secretary of Homeland Security‘s recent exercise of her discretionary authority. But Ms. Geneme seems to prefer a denial of her application to a further delay in its adjudication. She should carefully consider that preference before filing her mandamus motion.
AKIACHAK NATIVE COMMUNITY, et al., Plaintiffs, v. Kenneth SALAZAR, Secretary of the Interior, et al., Defendants, and The State of Alaska, Intervenor.
Civil Action No. 06-969 (RC).
United States District Court, District of Columbia.
March 31, 2013.