Ahrary v. Curda et al

Filing 28

ORDER signed by Judge Garland E. Burrell, Jr. on 10/2/2012 GRANTING plaintiff's 17 Motion for Summary Judgment on her APA claim to adjudicate the 2001 Form I-485 Application to adjust status to permit residency is GRANTED. Defendants shall adjudicate plaintiff's 2001 Form I-485 Application to adjust status to permanent residency within 60 days from date on which Order is filed. (Marciel, M)

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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.

10

17

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-2992-GEB-EFB
ORDER GRANTING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT

19
Plaintiff moves for summary judgment on her claim for mandamus

20
21

relief,

in

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adjudicate “either . . . of her two (2) pending [I-485] Applications to

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Adjust Permanent Resident Status.”

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be

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adjudication of [her] [A]pplication[s] . . . .” (Pl.’s Mot. for Summ. J.

26

(“Pl.’s

27

follows: “Defendants respectfully rest upon the arguments set forth in

28

their March 20, 2012 Motion for Summary Judgment, arguing that the delay

granted

which

because

Mot.”)

she

seeks an order compelling Defendants to

Plaintiff argues her motion should

“Defendants

1:11-13.)

have

Defendants

1

unreasonably

oppose

delayed

Plaintiff’s

motion

the

as

1

associated with adjudication of [Plaintiff’s] Form I-485 Application for

2

Adjustment of Status . . . is not unreasonable.” (Defs.’ Resp. to Pl.’s

3

Mot. (“Defs.’ Resp.”) 1:25-27.)1

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I. LEGAL STANDARD

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A party seeking summary judgment bears the initial burden of

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demonstrating the absence of a genuine issue of material fact for trial.

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Celotex

8

‘material’ when, under the governing substantive law, it could affect

9

the outcome of the case.” Thrifty Oil Co. v. Bank of Am. Nat. Trust &

10

Sav. Ass’n, 322 F.3d 1039, 1046 (9th Cir. 2003) (quoting Anderson v.

11

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of material

12

fact is “genuine” when “the evidence is such that a reasonable jury

13

could return a verdict for the nonmoving party.” Id.

Corp.

v.

Catrett,

477

U.S.

317,

323

(1986).

“A

fact

is

14

“‘Where, as here, the moving party bears the burden of proof

15

at trial, [Plaintiff] must come forward with evidence which would

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entitle [her] to a directed verdict if the evidence went uncontroverted

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at trial.’” Houghton v. South, 965 F.2d 1535, 1536 (9th Cir. 1992)

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(emphasis in original) (quoting Int’l Shortstop, Inc. v. Rally’s, Inc.,

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939 F.2d 1257, 1264-65 (5th Cir. 1991)). If [Plaintiff] satisfies [her]

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initial burden,

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otherwise provided in [Federal] Rule [of Civil Procedure] 56, specific

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facts showing that there is a genuine issue for trial.” T.W. Elec.

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Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.

“[Defendants]

must

set

forth,

by

affidavit

or as

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Although Plaintiff requests relief in her summary judgment
motion on “either . . . of her two (2) pending [I-485] Applications[,]”
the summary judgment record does not contain evidence concerning the
alleged 2010 Application, and both parties focus their arguments on the
January 2001 Application. Therefore, the Court does not reach the issue
of whether Defendants’ delay in adjudicating the alleged 2010
Application is unreasonable.
2

1

1987) (citation and internal quotation marks omitted).

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The evidence must be viewed “in the light most favorable to

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[Defendants],” and “all reasonable inferences” that can be drawn from

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the evidence must be drawn “in [their] favor . . . .” Nunez v. Duncan,

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591 F.3d 1217, 1222-23 (9th Cir. 2010).

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II. UNCONTROVERTED FACTS

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Plaintiff is a “native and citizen of Afghanistan who was

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admitted to the United States on August 14, 1999, on a J-1 non-immigrant

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visa.” (Decl. of Julia Wilcox filed in Supp. of Defs.’ Mot. for Summ. J.

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(“Wilcox Decl.”) ¶ 3, ECF No. 11-2.) “Plaintiff was granted asylum by

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the . . . Immigration and Naturalization Service ([“INS”]) on January

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13, 2000. Id. After one year in the United States in asylum status, an

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alien may apply for adjustment of status to that of a permanent resident

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. . . by filing a Form I-485 [application]. . . .” Id. at ¶ 4. Plaintiff

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applied for asylum-based adjustment of status on January 30, 2001. Id.

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That Application remains pending. Id. at ¶ 30.

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Background and security checks are not responsible for the

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delay in adjudicating Plaintiff’s Application; the FBI has completed

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Plaintiff’s name and background checks. Id. at ¶¶ 8-11. “Plaintiff’s

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[A]pplication for adjustment of status remains pending because in the

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years since she was granted asylum, legislation has been passed that

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affects

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status[,]” specifically including “the USA PATRIOT Act . . . ; the REAL

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ID Act . . . ; and the Consolidated Appropriations Act of 2008 (CAA)[.]”

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Id. at ¶ 12.

the

adjudication

of

her

[A]pplication

for

adjustments

of

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Plaintiff’s asylum claim included information that she was an

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active supporter of the Mujahidin in the Afghanistan insurgency against

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the Soviet occupation and interim government. Id. at ¶ 13. Plaintiff’s
3

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asylum claim indicates that, “beginning in April 1978, she helped the

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Mujahidin by distributing pamphlets, and by giving financial support to

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the organization.” Id. The Mujahidin is currently designated as a Tier

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III terrorist organization under 8 U.S.C. 1182(a)(3)(B)(vi)(III). Id.

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Defendants contend Plaintiff’s involvement with the Mujahidin renders

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her inadmissible for a change in status. Id. at 14.

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Under

the

Immigration

&

Nationality

Act

(“INA”),

“the

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Secretary of Homeland Security, in consultation with the Secretary of

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State

and

the

Attorney

General,

and

the

Secretary

of

State,

in

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consultation with the Secretary of Homeland Security and the Attorney

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General, have the discretionary authority to exempt certain terrorist-

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related inadmissibility grounds.” Id. at 15. “In December 2007, the CAA

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amended the Secretary of Homeland Security’s authority to exempt certain

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terrorist-related inadmissibility grounds.” Id. at ¶ 18. “Specifically,

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the CAA

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Homeland Security and the Secretary of State to exempt terrorist-related

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inadmissibility grounds as they relate to individual aliens, and to

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exempt certain . . . Tier III terrorist organizations . . . .” Id.

expanded

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The

the discretionary

procedure

for

authority

exercising

the

of

the

Secretary of

Secretary

of

Homeland

20

Security’s

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deliberative.” Id. at ¶ 26.

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security, humanitarian, and foreign policy concerns, must be weighed

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carefully before a decision is made.” Id.

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discretionary

exemption

authority

is

“intentionally

“Various factors, including national

On March 26, 2008, Defendant United States Citizenship and

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Immigration

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adjudication

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inadmissibility.

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adjudicators should withhold adjudication of cases that could benefit

Services
of

(“USCIS”)

cases
Id.

at

issued

involving
¶

27.

memorandum

concerning

terrorist-related

“[T]he

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a

memorandum

grounds

instructed

the
of
that

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from the Secretary’s expanded discretionary authority . . . . ” Id. “The

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adjudication of Plaintiff’s [A]pplication is currently being withheld in

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accordance with [that] agency policy.” Id. ¶ 30.

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Defendants indicate that “[i]f USCIS were ordered to complete

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the adjudication of Plaintiff’s [A]pplication for adjustment of status,

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the case would likely be denied without prejudice to allow plaintiff to

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re-file.” Id. Defendants have also indicated that they “intend[] to

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adjudicate Plaintiff’s [A]pplication . . . at such time as an exercise

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of the discretionary exemption authority that would apply to Plaintiff

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becomes available. . . .” Id. at ¶ 31.

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On August 23, 2012, Defendants advised the Court that “the

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Secretary of the Department of Homeland Security signed a new exercise

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of her exemption authority . . . relating to the terrorism-related

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grounds of inadmissibility.” (Defs.’ Notice of Publication of New

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Exemption, ECF No. 23.) Defendants filed the Declaration of Francis J.

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Doyle, a Department of Homeland Security employee, in connection with

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the August 23rd Notice. Ms. Doyle declares that “USCIS has not yet

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determined whether individuals affiliated with the [Mujahidin], such as

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the Plaintiff, will be eligible for exemption consideration under this

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[new] exercise of this exemption authority.” (Doyle Decl. ¶3, ECF No.

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23-2.) Ms. Doyle further avers:

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If it is determined that the [Mujahidin] group the
Plaintiff was affiliated with is eligible for
consideration under the new exercise of the
exemption authority, Plaintiff’s [A]pplication
would be removed from hold and USCIS would proceed
with adjudication forthwith. If the [Mujahidin]
group . . . is not eligible for consideration under
this new authority, then either the adjudication
hold would continue on Plaintiff’s [A]pplication
until a new exemption is created that would benefit
Plaintiff, or the [A]pplication would be denied.

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Id. ¶ 5.
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III. DISCUSSION

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Plaintiff seeks relief under both the Mandamus and Venue Act

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

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to promptly adjudicate [her] I-485 Application to Adjust Status to

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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 . . . to act upon such matters within a

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reasonable time.” Id. at 1175-76 (citation and internal quotation marks

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omitted).

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“The failure to act on a Form [I-485] application falls under

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the purview of the APA.” Qureshi v. Napolitano, No. C-11-05814-YGR, 2012

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WL 2503828, at *3 (N.D. Cal. June 28, 2012).

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[T]he duty to act on an application, as opposed to
what action will be taken, is not discretionary on
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
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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.”).

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has

a

general,

non-discretionary

Therefore,

the

issue

to

duty

be

to

decided

process

is

the

whether

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Defendants’ delay in processing Plaintiff’s 2001 I-485 Application is

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unreasonable.

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“Unreasonable

delay

in

the

resolution

of

immigration

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applications depends on the particular facts of a case.” Qureshi, 2012

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WL 2503828, at * 4. “To evaluate whether relief under the APA is

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appropriate,

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Research & Action v. FCC, 750 F.2d 70, 79-80 (D.C. Cir. 1984) (‘TRAC’),

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is used.” Chevron, U.S.A. Prod. Co. v. O’Leary, 958 F. Supp. 1485, 1493

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(E.D. Cal. 1997). These factors are:

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the

multi-factor

test

set

out

in

Telecommunications

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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
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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22
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25
26

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and citations omitted).

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A.

First Factor - Rule of Reason

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Concerning the first factor, Plaintiff argues “no rule of

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reason can exist to allow [Defendants] to keep [her I-485 A]pplication

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on

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exemption . . . sometime in the future[;] Defendant[s] must either

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approve [her A]pplication or deny it so that Plaintiff can seek other

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forms of redress and or otherwise get on with her life.” (Pl.’s Mot.

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4:11-14.)

hold

indefinitely

in

the

event

that

the

government

crafts

an

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Defendants rejoin, “[t]he time . . . USCIS is currently taking

11

to review [Plaintiff’s] Application is governed by a rule of reason.”

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(Defs.’ Mot. for Summ. J. (“Defs.’ Mot.”) 9:19-20.) Defendants argue

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that “[t]he current hold placed on . . . [Plaintiff’s A]pplication

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results directly from the CAA and USCIS’s CAA-based policy – and it

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inures to her benefit . . . .” Id. at 9:25-10:1.

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“In evaluating the ‘rule of reason’ factor for holds on Form

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I–485 applications due to terrorist-related inadmissibility findings,

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courts focus, in part, on the length of delay.” Qureshi, 2012 WL

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2503828, at *4. “Four years or less have been found to be reasonable. By

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contrast, six years [or] more have been found to be unreasonable.” Id.

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(internal citations omitted). However, “length of delay alone is not

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dispositive;

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inquiry.” Mugomoke v. Curda, Civ. No. 2:10-CV-02166, 2012 WL 113800, at

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*4 (E.D. Cal. Jan. 13, 2012)(citation omitted). “Thus, courts have

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‘look[ed] to the source of the delay-e.g., the complexity of the

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investigation

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participated in delaying the proceeding.’” Qureshi, 2012 WL 2503828, at

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*4 (quoting Singh, 470 F. Supp. 2d at 1068).

the

as

reasonableness

well

as

the

determination

extent

8

to

is

which

a

the

fact-specific

defendant[s]

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“Here, the parties do not disagree over the ‘source’ of the

2

delay.” Id. at *5. Defendants placed Plaintiff’s Application on hold

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pursuant to USCIS’s policy, which “instruct[ed] that any cases which

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might benefit from the Secretary's discretionary authority under the CAA

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to

create

exemptions

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adjudication.”

Id.

7

Nevertheless,

Defendants

8

unreasonable delay.

9

be

Plaintiff

placed

has

contend

not
that

on

hold

with

contributed
eleven

respect

to

years

the
is

to

delay.
not

an

The Court recognizes that the exemption
process itself requires careful deliberation, the
coordination of numerous agencies, and that the
process is, by nature, time-consuming. Defendants'
motives in implementing USCIS policies and in
placing Plaintiff's Application on hold are further
not being questioned. Here, however, . . .
Defendants' failure to provide any indication of
when Plaintiff can anticipate adjudication of [her]
Application beyond the current [eleven] years is
not reasonable.

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15

should

Id.

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“[F]or defendants to hold the [A]pplication indefinitely in

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case [Plaintiff]

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[benefit from] an exemption does not constitute a ‘rule of reason’ that

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allows this court to find the delay reasonable.” Mugomoke, 2012 WL

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113800, at *7; see also Saini, 553 F. Supp. 2d at 1176 (E.D. Cal. 2008)

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(finding a delay of six years to be unreasonable). “The record is silent

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as to how the reviews for a discretionary exemption are being conducted,

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how long a typical review has taken, how many applications are waiting

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to be considered for a discretionary exemption, how many applications

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will

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organizations have not been exempted after being considered for an

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exemption.” Tewolde v. Wiles, No. C11-1077JLR, 2012 WL 750542, at *7

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(W.D. Wash. Mar. 7, 2012).

be

might,

considered

at

before

some

unspecified

[Plaintiff’s]

9

or

point in

how

the

many

future,

Tier

III

1

Further, although the Secretary of the Department of Homeland

2

Security signed a new exercise of her exemption authority on August 10,

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2012, Defendants have not determined whether Plaintiff will benefit from

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this new exercise of exemption authority, and Defendants have not

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provided any evidence concerning when such a determination will be made.

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7

For

the

stated

reasons,

this

factor

weighs

in

favor of

granting summary judgment.

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B.

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Second Factor - Statutory Schedule
“[T]here

is

no

congressional

timetable

for

I-485

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adjudications. The agency must adjudicate [Plaintiff’s A]pplication in

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a

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Therefore, “the second factor does not weigh strongly in favor of either

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party.”

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C.

reasonable

amount

of

time.”

Mugomoke,

2012

WL

113800,

at

*7.

Qureshi, 2012 WL 2503828, at *6.
Third & Fifth Factors - Effect on Human Health & Welfare and

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Prejudice

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Plaintiff argues, inter alia, the third and fifth factors

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weigh in favor of granting summary judgment since “she has . . .

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suffered mental and emotional pain because of the delay and uncertainty

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of her future status in the United States . . . .” (Pl.’s Mot. 4:24-

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5:1.)

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Defendants counter, “[t]he negative impact on [Plaintiff] is

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balanced against Defendants’ interest in complying fully with the

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Congressional mandates of the CAA and the resulting USCIS policy[,]” and

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“[Plaintiff] actually inures a benefit from the current adjudication

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hold as the agency assesses whether an exemption may apply in her case,

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rather than face the denial that would otherwise result from her

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material support of a Tier III terrorist organization.” (Defs.’ Mot.

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11:22-12:2.) Defendants further argue, “USCIS’s interest in national
10

1

security

2

[Plaintiff’s] interest in the immediate . . . adjudication of her

3

adjustment [A]pplication.” Id. at 12:15-17.

and

the

issuance

of

potential

exemptions

outweighs

4

“[C]ourts have recognized that human health and welfare are

5

implicated when I-485 applications are not timely adjudicated.” Tewolde,

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2012 WL 750542, at *7 (citing Al-Rifahe v. Mayorkas, 776 F. Supp. 2d

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927, 937 (D. Minn. Mar. 7, 2011)). Further, “the fact that [Plaintiff]

8

wants

9

[Defendants’] warnings that [they] likely will deny [her A]pplication,

10

supports an inference that the harm of the delay is not remote or

11

insignificant.” Id. (citing Mugomoke, 2012 WL 113800, at *8). Moreover,

12

“a

13

sufficient

14

indefinitely. . . . Defendants have not identified any national security

15

concern specific to Plaintiff [her]self.” Qureshi, 2012 WL 2503828, at

16

*6.

[Defendants]

generalized

17
18
19
20

to

concern

adjudicate

over

justification

[her

national

to

hold

A]pplication

security

does

[Plaintiff’s]

now,

despite

not

provide

Application

For the stated reasons, the third and fifth factors weigh in
favor of granting summary judgment.
D.

Fourth Factor - Effect of Expediting Delayed Action
Plaintiff

argues

Defendants

cannot

“articulate

a

cogent

21

argument as to how a court order [requiring them to adjudicate her I-485

22

Application] would affect competing government priorities” since they

23

have not “provid[ed] a definitive timetable or a legally binding pledge

24

for review of whether the Plaintiff qualifies for an exemption[.]”

25

(Pl.’s Mot. 5:4-7.)

26

Defendants counter, “[Plaintiff’s] insistence upon immediate

27

adjudication of her [A]pplication directly challenges the agency’s

28

process for exercises of discretionary exemption authority.” (Defs.’
11

1

Mot. 12:26-27.)

2

Defendants’ argument is not persuasive. “The Court is not

3

directing

4

Plaintiff does not by this action seek a favorable decision—[she] seeks

5

a decision, positive or negative.” Qureshi, 2012 WL 2503828, at *7.

6

Further, “[t]he fact that an exemption in Plaintiff's case may be

7

premature is not dispositive[,] nor does it intrude on the Secretary's

8

discretion. The USCIS still has a duty to act.” Id.

9

factor weighs in favor of granting summary judgment.

10

E.

the USCIS

how

to

adjudicate,

but merely

to

adjudicate.

Therefore, this

Sixth Factor - Bad Faith

11

Plaintiff “does not allege any impropriety[, and] thus there

12

is no factual dispute regarding the application of [this] factor.”

13

Mugomoke, 2012 WL 113800, at *9. However, “a court need not find that an

14

agency acted in bad faith to conclude unreasonable delay.” Qureshi, 2012

15

WL 2503828, at *7.

16

“Viewing these factors in their totality, the Court concludes

17

that the [eleven]-year delay on Plaintiff's [2001 I-485] Application is

18

unreasonable.” Qureshi, 2012 WL 2503828, at *7.

19

While Congress did not mandate a deadline for a
decision on Plaintiff's Application, Defendants
cannot hold the Application indefinitely. Even if
Plaintiff could [benefit from the August 10, 2012
exercise of exemption authority or could benefit
from another] exemption in the future, it is also
possible [s]he will never receive one. Defendants
have provided no evidence regarding the likelihood
of [Plaintiff benefitting from an exemption] or how
rendering a decision would affect or challenge
USCIS policies or the discretionary exemption
process. While the hold policy may potentially
benefit applicants, here, greater benefit inures to
Plaintiff by adjudication. . . . In this case, the
TRAC factors weigh in Plaintiff's favor, and as
such, [s]he is entitled to summary judgment.

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Id.
12

1

IV. CONCLUSION

2

For

the

stated

reasons,

Plaintiff’s

motion

for

summary

3

judgment on her APA claim to adjudicate her 2001 Form I-485 Application

4

to adjust status to permanent residency is GRANTED.

5

Defendants

shall

adjudicate

Plaintiff’s

2001

Form

I-485

6

Application to adjust status to permanent residency within 60 days from

7

the date on which this order is filed.

8

Dated:

October 2, 2012

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GARLAND E. BURRELL, JR.
Senior United States District Judge

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