Geneme v. Holder

935 F.Supp.2d 184

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.

David R. Saffold, Washington, DC, for Plaintiff.

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 visa 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 apply 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.

The statutory provision which the letter cited makes aliens who have provided material support to a terrorist organization inadmissible as a general matter. As amended by the REAL ID Act of 2005, Pub.L. No. 109–13, 119 Stat. 302, the Immigration and Nationality Act (“INA”) establishes three categories of terrorist organization: two formally designated by the Secretary of State, 8 U.S.C. § 1182(a)(3)(B)(vi)(I)-(II), and a third that, although not formally designated, nonetheless “engages in, or has a subgroup which engages in” terrorist activities, id. § 1182(a)(3)(B)(vi)(III). Groups in this third category are known as “Tier III” or “undesignated” terrorist organizations. In the Consolidated Appropriations Act of 2008 (“CAA”), Pub.L. No. 110–161, 121 Stat. 1844, 2364–65, Congress gave both the Secretary of State and the Secretary of Homeland Security the authority to, “after consultation with the Attorney General” and each other, “determine in such Secretary's sole unreviewable discretion ... that subsection (a)(3)(B)(vi)(III) of this section shall not apply to a group within the scope of that subsection.” 8 U.S.C. § 1182(d)(3)(B)(i). By doing so, either Secretary can remove the bar on admissibility for aliens who have supported that group.

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 passage 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 hold. 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 (including the filing of a mandamus action in federal court) ... the case should be elevated through the chain of command to appropriate Headquarters personnel. Guidance will be provided by USCIS headquarters on whether or not the case should be adjudicated.” Id. at 3. This suit constitutes such a request, but Ms. Geneme has received no indication of when her case will be adjudicated by USCIS.

In August 2012, while the instant motion was pending, the Secretary of the Department of Homeland Security exercised her discretionary authority under 8 U.S.C. § 1182(d)(3)(B)(i). The Secretary established a multi-factor test to determine whether to exempt from inadmissibility an alien who has provided material support to a Tier III terrorist organization. SeeExercise of Authority Under the Immigration and Nationality Act, 77 Fed.Reg. 49,821 (Aug. 17, 2012). One element of that test evaluates the terrorist group, denying an exemption if it has ever “targeted U.S. interests or persons” or “engaged in a pattern or practice of torture, ... genocide, ... or the use of child soldiers.” Id. at 49,821. USCIS is currently consulting with the Department of Homeland Security to determine whether supporters of the Oromo Liberation Front will qualify for exemption from inadmissibility under the Secretary's criteria. The agency has no estimate as to when it will complete its determination. Decl. of Naboone J. Puripongs Jaeger, Jan. 17, 2013, at ¶¶ 3–6. Ms. Geneme's application remains on hold.

II. LEGAL STANDARD

A. Jurisdiction

This is a court of limited jurisdiction, possessing “only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (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 Federal Rule of Civil Procedure 12(b)(1), the court must take the plaintiff's factual allegations as true. See El–Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 839 (D.C.Cir.2010) (en banc). It may, “when necessary ... look beyond the complaint to ‘undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.’ ” Mowatt v. U.S. Parole Comm'n, 815 F.Supp.2d 199, 204 (D.D.C.2011) (quoting Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C.Cir.1992)).

B. Substantive Standard

When a plaintiff seeks a writ of mandamus under the All Writs Act, 28 U.S.C. § 1651(a), to “compel agency action unlawfully withheld or unreasonably delayed,” 5 U.S.C. § 706(1), the court “starts from the premise that issuance of the writ is an extraordinary remedy, reserved only for the most transparent violations of a clear duty to act.” In re Bluewater Network, 234 F.3d 1305, 1315 (D.C.Cir.2000). “The central question in evaluating ‘a claim of unreasonable delay’ is ‘whether the agency's delay is so egregious as to warrant mandamus.’ ” In re Core Commc'ns, Inc., 531 F.3d 849, 855 (D.C.Cir.2008) (quoting Telecomms. Research & Action Ctr. v. FCC (“ TRAC ”), 750 F.2d 70, 79 (D.C.Cir.1984)).

III. ANALYSIS

A. Jurisdiction

“[I]n cases brought under APA § 706(1) seeking to ‘compel agency action unlawfully withheld or unreasonably delayed,’ 5 U.S.C. § 706(1), when the agency has failed to act within a ‘reasonable time,’ id. § 555(b), jurisdiction lies in the district court.” In re Natural Resources Def. Council, 645 F.3d 400, 406 (D.C.Cir.2011). But in a section captioned “Matters not...