Ahrary v. Curda et al

Filing 16

ORDER signed by Judge Garland E. Burrell, Jr on 05/08/12 ORDERING that defendants' 11 Motion for Summary Judgment is DENIED. (Benson, A.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Tahera AHRARY,
Plaintiff,

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v.

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SUSAN CURDA, Officer in Charge,
Sacramento Office, U.S.
Citizenship and Immigration
Services; ALEJANDRO N. MAYORKAS,
Director, Bureau of Citizenship
and Immigration Services, U.S.
Dept. of Homeland Security;
JANET NAPOLITANO, U.S. Secretary
of Homeland Security; ERIC H.
HOLDER, JR., U.S. Attorney
General; ROBERT S. MUELLER, III,
Director of the Federal Bureau
of Investigation,

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Defendants.
________________________________

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2:11-cv-02992-GEB-EFB
ORDER*

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Defendants move for summary judgment on Plaintiff’s claim for

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mandamus

relief

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application to adjust status to permanent residency, arguing “the delay

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of processing such a complex adjustment case involving terrorism is, as

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a matter of law, not unreasonable.” (Defs.’ Mot. 3:16-19.) Specifically,

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Defendants argue they “have yet to reach final adjudication because of

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the

series

of

compelling

legislative

Defendants

and

policy

to

adjudicate

changes

that

her

have

I-485

affected

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*

argument.

This matter is deemed suitable for decision without oral
E.D. Cal. R. 230(g).
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[Plaintiff’s] admissibility.” Id. 6:4-5. Plaintiff opposes the motion.

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I. LEGAL STANDARD

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When the defendant is the moving party and is seeking summary
judgment on one or more of a plaintiff’s claims,

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[the defendant] has both the initial burden of
production and the ultimate burden of persuasion on
[the motion]. In order to carry its burden of
production, the [defendant] must either produce
evidence negating an essential element of the
[plaintiff’s claim] or show that the [plaintiff]
does not have enough evidence of an essential
element to carry its ultimate burden of persuasion
at trial. In order to carry its ultimate burden of
persuasion on the motion, the [defendant] must
persuade the court that there is no genuine issue
of material fact.

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Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099,

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1102 (9th Cir. 2000) (citations omitted). Defendants’ motion is based on

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negating an essential element of Plaintiff’s claim for mandamus relief,

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specifically,

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unreasonable. Since Defendants do not carry their initial burden of

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production, however, the Court will not reach the ultimate burden of

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persuasion.

that

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the

delay

in

processing

her

application

is

II. UNCONTROVERTED FACTS

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Local Rule 260(b) requires:

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Any party opposing a motion for summary judgment or
summary adjudication [must] reproduce the itemized
facts in the [moving party’s] Statement of
Undisputed Facts and admit those facts that are
undisputed and deny those that are disputed,
including with each denial a citation to the
particular portions of any pleading, affidavit,
deposition, interrogatory answer, admission, or
other document relied upon in support of that
denial.

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If

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supported] facts identified in the [movant’s] statement of undisputed

the

nonmovant

does

not

“specifically

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.

.

.

[controvert

duly

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facts,” the nonmovant “is deemed to have admitted the validity of the

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facts contained in the [movant’s] statement.” Beard v. Banks, 548 U.S.

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521, 527 (2006).

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Plaintiff

does

not

specifically

controvert

the

facts

in

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Defendants statement of undisputed facts; therefore, the following facts

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are uncontroverted for the purposes of Defendants’ motion. Plaintiff

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“was granted asylum on January 13, 2000[; and a] year later, [she]

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applied for asylum-based adjustment of status pursuant to 8 U.S.C. §

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1159(b).” (Defs.’ Statement of Undisputed Facts (“SUF”) ¶ 1.) “On

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December 22, 2010, [Plaintiff] filed a second adjustment of status

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application based on her marriage to a United States citizen.” Id. ¶ 2.

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U.S.

Citizenship

and

Immigration

Services

Plaintiff a letter dated February 16, 2011, stating

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(“USCIS”)

sent

as follows:

Your case is on hold because you appear to be
inadmissible
under
[§]
212(a)(3)(B)
of
the
[Immigration and Naturalization Act (“INA”)], 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.

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(Compl. Ex. C.) Plaintiff’s “application stated that beginning in 1978,

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she assisted the Mujadin by distributing pamphlets and giving financial

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support.” (Defs.’ SUF ¶ 5.) Defendants state “USCIS determined that the

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Mujahidin meets the definition of a Tier III undesignated terrorist

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organization under 8 U.S.C. § 1182(a)(3)(B)(vi)(III).” Id. ¶ 6. Further,

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Defendants

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[Plaintiff’s] applications today, USCIS would likely deny the case under

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the terrorism-related inadmissibility grounds at 8 U.S.C.” Id. ¶ 7.

state

“[i]f

required

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to

complete

adjudication

of

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III. DISCUSSION

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Plaintiff seeks relief under both the Mandamus and Venue Act

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(“MVA”) and the Administrative Procedure Act (“APA”) “to compel the

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Defendants to promptly adjudicate the I-485 Application to Adjust Status

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to Permanent Residency[.]” (Compl. ¶ 1.) “[W]hen APA § 706(1) and the

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mandamus statute are cited as bases to have a court order government

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employees to perform ministerial duties, the claim should be analyzed

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under APA standards, not under mandamus standards.” Chevron, U.S.A.

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Prod. Co. v. O’Leary, 958 F. Supp. 1485, 1493 (E.D. Cal. 1997) (citing

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Independence Mining Co., Inc. v. Babbitt, 105 F.3d 502, 507 n.6 (9th

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Cir. 1997)).

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“The APA provides that a court may compel ‘agency action

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unlawfully withheld or unreasonably delayed.’” Independence Mining Co.,

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Inc., 105 F.3d at 507 (quoting 5 U.S.C. § 706(1)). “Relief under the APA

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is limited to instances where an agency is alleged to have failed to

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take a discrete agency action that it is required to take.” Saini v.

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U.S. Citizenship & Immigration Servs., 553 F. Supp. 2d 1170, 1175 (E.D.

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Cal. 2008) (internal quotation marks and emphasis omitted). “With

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respect to required ministerial action, however, the APA requires

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administrative agencies, at 5 U.S.C. § 555(b), to act upon such matters

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within a reasonable time.” Id. at 1175-76 (internal quotation marks

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omitted).

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Defendants argue Plaintiff’s “application is the object of the

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agency’s prosecutorial discretion and internal guidelines.” (Defs.’ Mot.

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6:3-4.)

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nondiscretionary duty to adjudicate I-485 immigration status adjustment

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applications:

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However,

as

argued

by

Plaintiff,

Defendants

the duty to act on an application, as opposed to
what action will be taken, is not discretionary on
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have

a

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the part of the USCIS. Therefore the salient point,
in considering the availability here of relief
under the APA, is whether or not there has been an
unreasonable delay entitling Plaintiff to judicial
intervention. The absence of a specified deadline
within which action must be taken does not change
the nature of USCIS’ obligation from one that is
ministerial to a matter within the agency’s
discretion.

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Saini, 553 F. Supp. 2d at 1176; see also Independence Mining Co., Inc.,

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105 F.3d at 507 n.6 (internal citations omitted) (“[A]t some level, the

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government

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applications in the first instance. . . . In other words, even if the

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acts were discretionary, the Secretary cannot simply refuse to exercise

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his discretion.”); Mugomoke v. Curda, Civ. No. 2:10-CV-02166, 2012 WL

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113800, at *5 (E.D. Cal. Jan. 13, 2012) (“Under either the default rule

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of

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§ 245.2(a)(5)(I) and 8 C.F.R. § 103.2(b)(18), the USCIS has a duty to

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decide I-485 applications.”).

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§

has

555(b)

a

or

general,

a

non-discretionary

non-discretionary

duty

duty

to

imposed

process

by

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the

C.F.R.

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“What constitutes an unreasonable delay in the context of

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immigration applications depends to a great extent on the facts of the

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particular case.” Saini, 553 F. Supp. 2d at 1176. “To evaluate whether

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relief under the APA is appropriate, the multi-factor test set out in

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Telecommunications Research & Action v. FCC, 750 F.2d 70, 79-80 (D.C.

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Cir. 1984) (‘TRAC’), is used.” Chevron, U.S.A. Prod. Co. v. O’Leary, 958

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F. Supp. 1485, 1493 (E.D. Cal. 1997). The test comprises the following

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six factors:

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(1) the time agencies take to make decisions must
be governed by a rule of reason[;] (2) where
Congress has provided a timetable or other
indication of the speed with which it expects the
agency to proceed in the enabling statute, that
statutory scheme may supply content for this 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
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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.

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Telecomm. Research & Action, 750 F.2d at 79-80 (internal quotation marks

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and citations omitted).

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Defendants argue “[a]n analysis of the TRAC factors shows that

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the

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unreasonable.

length

of

delay

in

this

[Plaintiff’s]

case

is,

application

as

a
is

matter

of

pending

law,

not

potential

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consideration for an exemption, which could ultimately take various

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forms depending on whether future exemptions focus on individuals,

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groups, conduct, or some combination thereof.” (Defs.’ Mot. 14:1-4.)

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Further,

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benefitted from the process, exemptions affecting over 14,000 aliens

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have issued, and there is thus ongoing potential for her to benefit. As

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such, the Court should find that the delay is not unreasonable as a

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matter of law and grant summary judgment for Defendants.” Id. 8:28-9:2.

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Plaintiff rejoins that “[a]n analysis of the . . . TRAC

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factors show that no ‘rule of reason’ exists for holding [Plaintiff’s]

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applications on an indefinite hold.” (Pl.’s Opp’n 6:10-11.) Further,

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Plaintiff contends she “does not enjoy any benefit from the government’s

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inaction nor has she received satisfaction for the government service

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she twice paid for. Rather, the delay has caused her both financial and

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emotional hardship.” Id. 6:11-13.

Defendants

contend

“[a]lthough

[Plaintiff]

has

not

yet

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The second and sixth factors are not relevant to the analysis

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in this case. “The second factor can be dispensed with readily, as there

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is no congressional timetable for I-485 adjudications. The agency must

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adjudicate [Plaintiff’s] application in a reasonable amount of time.”
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Mugomoke v. Curda, Civ. No. 2:10-CV-02166, 2012 WL 113800, at *7 (E.D.

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Cal. Jan. 13, 2012). Concerning the sixth factor, Plaintiff “does not

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allege any impropriety[, and] thus there is no factual dispute regarding

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the application of [this] factor.” Id. at *8.

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Concerning the first factor, Defendants argue “the length of

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time thus far and the adjudicatory hold is governed by a rule of

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reason.” (Defs.’ Mot. 10:10-11.) Specifically, Defendants argue as

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follows:

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[Plaintiff’s] application is on hold because
Congress enacted the [Consolidated Appropriations
Act (“CAA”)] in 2008. On March 26, 2008, in
response to changes the CAA made to the Secretary’s
discretionary exemption authority, USCIS issued a
memorandum directing its adjudicators to place on
hold
certain
adjustment
cases
that
could
potentially benefit from a future exercise by the
Secretary of her exemption authority as recently
expanded under the CAA. The current hold placed on
adjudication of [Plaintiff’s] application results
directly from the CAA and USCIS’s CAA-based
policy—and it inures to her benefit—and is thus
governed by a rule of reason as the first TRAC
factor requires.

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Id. 9:21-10:2. Plaintiff rejoins, arguing “it [does not] constitute a

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rule of reason to keep the application on hold indefinitely in the event

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that the government crafts an exemption to a law sometime in the

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future.” (Pl.’s Opp’n 3:10-12.)

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“[F]or defendants to hold the application indefinitely in case

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they might, at some unspecified point in the future, consider an

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exemption does not constitute a ‘rule of reason’ that allows this court

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to find the delay reasonable.” Mugomoke, 2012 WL 113800, at *7; see also

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SF Chapter of A. Philip Randolph Inst. v. U.S. Envtl. Prot. Agency, No.

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C 07-04936, 2008 WL 859985, at *4 (N.D. Cal. Mar. 28, 2008) (quoting In

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re Cal. Power Exchange Corp., 245 F.3d 1110, 1125 (9th Cir. 2001))

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(“Cases in which courts have afforded relief pursuant to § 706(1) ‘have
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involved delays of years, not months.’”); Saini v. U.S. Citizenship &

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Immigration Servs., 553 F. Supp. 2d 1170, 1176 (E.D. Cal. 2008) (finding

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a delay of six years to be unreasonable). Further, “Defendants do not

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explain how these concerns would be undermined by expediting an I-485

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application. While the government does cite a number of examples of

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exemptions

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indication as to when [Plaintiff] might be granted an exemption, if at

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all.” Mugomoke, 2012 WL 113800, at *7. Therefore, since Defendants have

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not shown this delay is governed by a rule of reason, this factor does

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granted

since

2006,

these

prior

exemptions

provide

no

not weigh in favor of granting summary judgment.

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Defendants argue the third and fifth factors weigh in favor of

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granting summary judgment since “USCIS’s interest in national security

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and

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interest in the immediate (indeed, premature) adjudication of her

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adjustment application.” (Defs.’ Mot. 12:15-17.) Further, Defendants

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argue

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adjudication hold as the agency assesses whether an exemption may apply

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in her case, rather than face the denial that would otherwise result

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from her material support of a Tier III terrorist organization.” Id.

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11:28-12:2. Plaintiff rejoins that “[a]s a result of the delay in the

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processing

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Plaintiff has lost her SSI (limited Non-Citizen) benefits in October

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2011 because she has not become eligible to apply for U.S. Citizenship.”

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(Pl.’s Opp’n 4:15-17.) Further, Plaintiff argues “[w]hile not the ideal

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outcome, Plaintiff may prefer taking affirmative action to press a

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decision on her applications rather than to wait helplessly on the whim

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of the Defendants.” Id. 5:15-17.

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the

issuance

of

“[Plaintiff]

of

The

potential

actually

Plaintiff’s

Court

has

exemptions

inures

a

applications

already

found
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outweighs

benefit

for

the

[Plaintiff’s]

from

the

permanent

issuance

of

current

residence,

potential

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exemptions to not be a rule of reason, and “the mere invocation of

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national security [by Defendants] is not enough to render agency delay

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reasonable per se.” Singh v. Still, 470 F. Supp. 2d 1064, 1069 (N.D.

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Cal.

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potential consequences should [her] application be denied. The fact

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[that she] wishes to have the application adjudicated now also supports

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an inference that the harm of delay is not remote or insignificant.”

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Mugomoke, 2012 WL 113800, at *8. It is also recognized that a “delay in

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[processing immigration status applications] is less tolerable given

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that human health and welfare are at stake.” Singh, 470 F. Supp. 2d at

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1069.

2007).

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Further,

Concerning

“[t]he

the

court

fourth

presumes

factor,

[Plaintiff]

Defendants

knows

argue

the

the

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uncontroverted facts show it should weigh in favor of granting summary

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judgment since “[Plaintiff’s] insistence upon immediate adjudication of

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her application directly challenges the agency’s process for exercises

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of discretionary exemption authority.” (Defs.’ Mot. 12:26-27.) Plaintiff

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rejoins that “[w]ithout providing a definitive timetable for a review of

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whether the Plaintiff qualifies for an exemption, Defendants[] are hard-

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pressed to articulate a cogent argument as to how a court order for

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mandamus would affect competing government priorities.” (Pl.’s Opp’n

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5:20-23.)

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“The court has determined that the agency is lawfully required

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to adjudicate [Plaintiff’s] application . . . . If the only effect of

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expediting the application is the loss of an authority that the court

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has

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[Defendants’] favor.” Mugomoke, 2012 WL 113800, at *8.

determined

is

ultra

vires,

this

factor

does

not

militate

in

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“The record before the [C]ourt does not support a finding that

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the factors articulated in the TRAC case weigh in [Defendants’] favor.”
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Id. at *9. Therefore, Defendants have not shown that the delay is not

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unreasonable, and have not met their initial burden of production.

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IV. CONCLUSION

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For

the

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Dated:

reasons,

Defendants’

motion

judgment is DENIED.

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stated

May 8, 2012

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GARLAND E. BURRELL, JR.
United States District Judge

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for

summary