Hosseini v. Napolitano et al

Filing 23

MEMORANDUM OPINION & ORDER: 1. The defendants' Motion to Dismiss the Complaint, or in the Alternative for Summary Judgment [R. 14] is DENIED. 2. Hosseini's Motion for Summary Judgment [R. 21] is GRANTED. 3. The defendants are ORDERED to adjudicate Hosseini's I- 485 application forthwith, but in no event more than sixty (60) days after the entry of this Order. Signed by Judge Joseph M. Hood on 4/3/2014.(AKR)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON

MEHRDAD HOSSEINI,

)
)
) Civil Action No. 5: 13-82-JMH
)
)
)
MEMORANDUM OPINION
)
)
AND ORDER
)

Plaintiff,
v.
JANET NAPOLITANO, et al.,
Defendants.
***
This

matter

defendants,
Security

is

Acting

(“DHS”)

Citizenship

and

***

before

the

Secretary
Rand

***
Court

of

Beers,

Immigration

***

the

on

the

motion

Department

Director
Services

of

of

of

Homeland

United

(“USCIS”)

the

States

Alejandro

Mayorkas, and Director of the USCIS Nebraska Service Center Mark
J. Hazuda, to dismiss the complaint, or in the alternative for
summary

judgment

[R.

14],

as

well

as

plaintiff

Hosseini’s cross-motion for summary judgment.
parties have filed responses in opposition.

Mehrdad

[R. 21]

Both

[R. 20, 22]

These

matters are therefore ripe for decision.
I
Mehrdad

Hosseini

is

a

resident

of

Lexington,

Kentucky.

Proceeding without counsel, on March 26, 2013, Hosseini filed a
complaint seeking declaratory and injunctive relief compelling
the

defendants

to

adjudicate

the
1

Form

I-485

Application

to

Register Permanent Residence or Adjust Status he filed on April
19, 2001.
12-year

[R. 1]

delay

Specifically,

In his complaint, Hosseini contends that the

in

his

indicates

he

deciding

application

that

the

is

unreasonable.

Administrative

Procedure

Act, 5 U.S.C. § 551 et seq., requires federal agencies to decide
matters before them within a reasonable time, 5 U.S.C. § 555(b),
and allows a court to “compel agency action unlawfully withheld
or unreasonably delayed.”

5 U.S.C. § 706(1).

[R. 1, p. 1]

He

further contends that pertinent provisions of the Immigration
and Nationality Act provide that I-485 applications “should be
completed no later than 180 days after the initial filing of the
application,”
under

28

8

U.S.C.

U.S.C.

§ 1571(b),

§ 1361

to

and

compel

seeks
USCIS

mandamus
to

relief

decide

his

application.
In their motion, the defendants indicate that Hosseini is a
native and citizen of Iran.

On May 6, 1999, Hosseini’s wife

Nasrin Abdolrahmani was granted asylum in the United States.
Abdolrahmani
Hosseini’s

filed
behalf

an
as

I-730
her

petition

spouse.

seeking
USCIS

asylum

approved

on
that

application, and on February 5, 2000, Hosseini was admitted as a
derivative asylee.

[R. 14-1, Canaan Decl. at ¶ 3]

An asylee who has been physically present in the United
States for at least one year and is otherwise admissible is
eligible for permanent resident status.
2

8 U.S.C. § 1159(b).

On

April

19,

2001,

Hosseini

filed

an

I-485

application

seeking

adjustment of his status to that of a lawful permanent resident.
The USCIS Nebraska Service Center made an initial request for
evidence on July 14, 2005, and a second request on December 3,
2007.

Hosseini’s application has remained pending since his

February 22, 2008, response.

Id. at ¶ 5.

If an applicant’s status is adjusted to that of lawful
permanent

resident,

they

are

issued

a

“green

card.”

Id.

However, an asylee may not be issued a green card if they face a
statutory bar to adjustment of status under 8 U.S.C. § 1182.
The defendants indicate that their failure to decide Hosseini’s
application

is

not

due

to

general

administrative

delay,

because he faces such a statutory bar to adjustment.

but

Id. at

¶ 11.
Specifically, Hosseini’s file indicates that while he was a
teenager living in Iran, he distributed literature provided by
Mojahedin-e-Khalq
“FEK”).

(the

“MEK”)

and

the

Fadaian-e-Khalq

(the

Before the Shah was deposed in Iran’s 1979 revolution,

MEK members killed United States soldiers and American civilian
defense contractors.
Marxist

ideology

After the revolution, MEK’s Islamist and

conflicted

with

that

of

the

Ayatollah

Khomeini’s government, and a series of bombings, mortar attacks
and

assassinations

directed

attributed to the group.

against

the

Khomeini

regime

are

For its part, FEK operated a training
3

camp and guerilla base in Tehran University and “engaged in
small scale, insurgent-style attacks in urban settings” against
the regime.
insisted

In her I-730 petition, Abdolrahmani stated that she

that

Hosseini

terminate

his

involvement

with

these

organizations in 1984 as a precondition to their marriage.

Id.

at ¶¶12-15.
USCIS has concluded that MEK and FEK engaged in “terrorist
activity”

within

the

§ 1182(a)(3)(B)(iii)(V)(b)

meaning
by

of

“[using]

8

any

...

U.S.C.
explosive,

firearm, or other weapon or dangerous device (other than for
mere personal monetary gain), with intent to endanger, directly
or indirectly, the safety of one or more individuals or to cause
substantial damage to property.”
that

MEK

and

terrorist

FEK

Accordingly, it has determined

constitute

undesignated

organizations

§ 1182(a)(3)(B)(vi)(III).

pursuant
Id.

at

(or

“Tier

to

8

USCIS

¶16.

has

III”)
U.S.C.
further

concluded that Hosseini “engage[d] in terrorist activity” within
the

meaning

distribution

of
of

8

U.S.C.

literature

§ 1182(a)(3)(B)(iv)
constituted

because

“afford[ing]

his

material

support” to a terrorist organization under subsection (VI) of
that

section,

thus

rendering

U.S.C. § 1182(a)(3)(B)(i)(I).

him

inadmissible

pursuant

to

8

Id. at ¶ 17.1

1

In their Memorandum, Defendants assert that if compelled to
adjudicate Hosseini’s application for adjustment, USCIS would
4

Nonetheless,
simply

denying

the

defendants

Hosseini’s

indicate

application

that

outright

rather

because

than
he

is

inadmissible, pursuant to agency policy USCIS has placed his
application, and many others by applicants similarly situated,
on adjudicatory hold.

[R. 14-1, Canaan Decl. at ¶¶ 21-23]

The

purpose for doing so is to permit the DHS Secretary to exercise
his discretionary authority under 8 U.S.C. § 1182(d)(3)(B)(i),
created

as

a

result

of

congressional

amendments

in

December

2007, to exempt organizations from being considered Tier III
terrorist

organizations

or

to

exempt

subsection (a)(3)(B) inadmissibility bars.

applicants

from

the

[R. 14, p. 9-10]

The defendants further indicate that USCIS is at present
actively considering whether FEK may be exempted pursuant to the
Secretary’s
authority.

August

10,

2012,

of

her

discretionary

However, USCIS has already determined that MEK does

not qualify for the exemption.
29]

exercise

[R. 14-1, Canaan Decl. at ¶¶ 27-

Should USCIS deny Hosseini’s application on inadmissibility

likely find him inadmissible not only for “material support” to
a terrorist organization for distributing literature, but also
under 8 U.S.C. § 1182(a)(3)(B)(i)(VIII) for receiving “militarytype
training”
from
a
terrorist
organization,
and
for
“engag[ing]
in
terrorist
activity”
under
8
U.S.C.
§ 1182(a)(3)(B)(i)(I) by using any “explosive, firearm, or other
weapon or dangerous device (other than for mere personal
monetary gain)” under 8 U.S.C. § 1182(a)(3)(B)(iii)(V). [R. 14,
p. 3]
However, the defendants have not placed any information
into the record which provides a factual basis to support the
relevance or application of either of these alternative grounds
for inadmissibility.
5

grounds,

it

would

not

prejudice

application at a later date.

his

right

to

re-file

his

Id. at ¶ 30.
II

The defendants present three arguments in support of their
motion to dismiss the complaint.

First, they contend that the

Court must dismiss the complaint pursuant to Federal Rule of
Civil Procedure 12(b)(1) because 8 U.S.C. § 1252(a)(2)(B)(ii)
deprives

the

Court

Hosseini’s claims.

of

subject

matter

[R. 14, pp. 11-13]

jurisdiction

over

Second, they argue that

their placement of his application on adjudicatory hold was a
discretionary choice which is not addressable by mandamus, and
that Hosseini has not shown any prejudice resulting from USCIS’s
failure to decide his application as required to obtain relief
under the APA.

[R. 14, pp. 14-16]

Third, they defendants

assert that they are entitled to summary judgment on Hosseini’s
APA claim because they have not unreasonably delayed in deciding
his I-485 application for more than twelve years.
16-24]

For

his

part,

Hosseini

addresses

the

[R. 14, pp.
defendants’

jurisdictional arguments in his response [R. 20, pp. 2-4], and
counters that he is entitled to summary judgment because the
delay in adjudicating his I-485 application is unreasonable as a
matter of law.
Since

the

[R. 21, pp. 2-3]
2007

congressional

amendments

and

USCIS’s

decision to place I-485 applications potentially subject to a
6

subsection (a)(3)(B) inadmissibility bar on adjudicatory hold,
USCIS has faced numerous lawsuits filed by applicants similarly
situated to Hosseini.

In response, USCIS has presented the same

or similar set of arguments to district courts throughout the
country, with divergent results.

The Court has canvassed that

authority, and finds that the decisions concluding that USCIS’s
positions

are

unsustainable

are

better

reasoned,

and

that

Hosseini is therefore entitled to relief.
A
The

defendants

§ 1252(a)(2)(B)(ii)
jurisdiction

over

first

deprives
Hosseini’s

argue
the

Court

claims

that
of

because

8

U.S.C.

subject
“[t]he

matter
pace

of

USCIS’s decisions over how and when to proceed with adjudicating
asylee adjustment of status applications is discretionary” for
purposes of that section.

8 U.S.C. § 1252(a)(2)(B)(ii) divests

federal courts of jurisdiction to review any “decision or action
of the Attorney General or the Secretary of Homeland Security
the authority for which is specified under this subchapter to be
in the discretion of the Attorney General or the Secretary of
Homeland

Security.”

(emphasis

added).

Because

8

U.S.C.

§ 1159(b) does not expressly state a specific time frame within
which

USCIS

must

adjudicate

applications

for

adjustment,

defendants contend that it is a matter of discretion, and thus
unreviewable in this Court.

[R. 14, p. 11-13]
7

Some courts have accepted USCIS’s argument, concluding that
§ 1159(b)’s grant of discretion to the Secretary to determine
whether

to

impliedly

substantively

grants

grant

discretion

or

to

deny

a

determine

I-485
the

application

pace

at

which

applications are decided, including a decision not to decide the
application

at

all.

Cf.

Seydi

v.

U.S.

Citizenship

and

Immigration Services, 779 F. Supp. 2d 714, 718 (E.D. Mich. 2011)
(citing

Singh

v.

Napolitano,

710

F.

Supp.

2d

123,

130-31

(D.D.C. 2010)); Alghadbawi v. Napolitano, No. 1:10-cv-1330-TWP,
2011

WL

4390084

(S.D.

Ind.

Sept.

19,

2011).

Others

have

rejected it, concluding that because the INA does not specify
that USCIS has discretion whether or not to issue a substantive
decision

on

an

I-485

§ 1252(a)(2)(B)(ii)’s
decisions

“the

application,
jurisdictional

authority

for

which

it

does

not

fall

within

divestiture

for

USCIS

is

specified

under

subchapter to be in the discretion” of the Secretary.

this

Cf. Liu

v. Novak, 509 F. Supp. 2d 1, 6-7 (D.D.C. 2007); Al Rifahe v.
Mayorkas, 776 F. Supp. 2d 927, 932 (D. Minn. 2011); Singh v.
Napolitano, 909 F. Supp. 2d 1164, 1169-70 (E.D. Cal. Nov. 13,
2012); Labaneya v. U.S. Citizenship and Immigration Services,
No. 12-cv-15506, 2013 WL 4582203 (E.D. Mich. Aug. 29, 2013).

To

date, no court of appeals has decided the question, Geneme v.
Holder, 935 F. Supp. 2d 184, 189 (D.D.C. 2013), although the
Eighth

Circuit

appears

to

have
8

assumed

subject

matter

jurisdiction to entertain such claims was present.

Debba v.

Heinauer, 366 F. App’x 696, 699 (8th Cir. 2010).
Having reviewed these authorities, the Court concludes that
because the INA does not include a statutory grant of discretion
to the Secretary to decline to adjudicate I-485 applications,
the divestment of jurisdiction contained in § 1252(a)(2)(B)(ii)
does not apply to bar a challenge like Hosseini’s to USCIS’s
failure to decide his I-485 application for over 12 years.

Liu,

509 F. Supp. 2d at 7 (“Section 1252(a)(2)(B)(ii) does not apply
to

all

discretionary

decisions,

but

only

to

the

narrow[

]

category of decisions where Congress has taken the additional
step to specify that the sole authority for the action is in the
[Secretary’s] discretion.”) (internal quotation marks omitted).
In these cases, none of the plaintiffs is seeking to compel the
Secretary to exercise his unfettered discretion “to determine
whether (and how) to issue a waiver of inadmissibility” under
§ 1182(d)(3)(B)(i).
decide

their

another.

Instead,

I-485

they

applications

seek

under

to

compel

§ 1159(b)

USCIS

one

way

to
or

If the applicant faces an inadmissibility bar under

§ 1182(a)(3)(B),

the

USCIS

applicability

of

that

application.

Applicants like Hosseini are challenging USCIS’s

bar

must

as

part

simply
of

its

determine
decision

on

the
the

affirmative decision to place their application in “adjudicative
hold,” an administrative limbo of potentially infinite duration.
9

There is no provision which grants USCIS “authority for” its
decision to place an application on adjudicative hold which is
“specified under this subchapter to be in the discretion of the
Attorney General or the Secretary of Homeland Security.”

As the

District of Minnesota aptly stated:
The discretionary authority to withhold indefinitely
the adjudication of an I–485 application is not
specified in the INA. To the contrary, “nothing in the
INA addresses, much less specifies, any discretion
associated with the pace of adjudication.”
Chen v.
Heinauer, No. C07-103RSL, 2007 WL 1468789, at *3 (W.D.
Wash. May 18, 2007); see also Tang v. Chertoff, 493 F.
Supp. 2d 148, 153-54 (D. Mass. 2007) (“Despite the
care taken in the INA to specify the substance of an
adjustment of status decision as discretionary, the
pacing of such a decision is not so specified.”)
(emphasis in original).
Accordingly, “[w]hile 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).
As discussed
below, the Administrative Procedures Act (“APA”)
states that agencies “within a reasonable time ...
shall proceed to conclude a matter presented to it.
...” 5 U.S.C. § 555(b) (emphasis added); see also Yu
v. Brown, 36 F. Supp. 2d 922, 931 (D.N.M. 1999) (“All
other courts addressing this question have held that
INS
has
a
non-discretionary
duty
to
process
applications for LPR status as well as all other
immigration applications.”).
Al Rahife, 776 F. Supp. 2d at 932-33.

See also Geneme, 935 F.

Supp. 2d at 191 (collecting cases); Spencer Enters., Inc. v.
United States, 345 F.3d 683, 689 (9th Cir. 2003) (“The language
of

§ 1252(a)(2)(B)(ii)

....

refers

10

not

to

‘discretionary

decisions,’ ... but to acts the authority for which is specified
under the INA to be discretionary.”).
This conclusion is also consistent with the Supreme Court’s
decision in Kucana v. Holder, 558 U.S. 233 (2010).

In Kucana,

the Supreme Court determined that § 1252(a)(2)(B)(ii), the same
jurisdiction-stripping provision at issue here, did not deprive
federal courts of jurisdiction to review orders by the Board of
Immigration

Appeals

proceedings.

denying

motions

to

reopen

removal

In doing so, it noted that this provision is not

implicated unless the grant of discretionary authority to the
Secretary is expressly found in the statute itself.
46.

The

insulated

Court
from

further

noted

judicial

that

review

are

the

types

Id. at 245of

decisions

“substantive

decisions

...involv[ing] whether aliens can stay in the country or not”,
whereas
Executive

adjunct
to

determinations

afford

the

which

alien

Kucana, 558 U.S. at 247-49.

“do[]

substantive

not

direct

relief”

are

the
not.

The Court therefore concludes that

it possesses subject matter jurisdiction over Hosseini’s claims.
B
Second, the defendants make a passing argument that their
placement

of

his

application

on

adjudicatory

hold

was

a

discretionary choice which is not addressable by mandamus, and
that

Hosseini

has

actually

benefitted

from

placing

his

application on adjudicative hold, and he therefore cannot show
11

prejudice

resulting

from

USCIS’s

failure

to

decide

application as required to obtain relief under the APA.

his

[R. 14,

pp. 14-16]
As to the first argument, defendants incorrectly suggest
that

mandamus

inaction.

relief

It is not.

is

limited

to

cases

of

administrative

Mandamus relief is appropriate where the

official has failed to satisfy a non-discretionary duty, which
may occur either through inaction or through action taken not in
conformity with the duty.

Cf. Labaneya, 2013 WL 4582203, at *3.

Here, there is no question that USCIS has a nondiscretionary
duty to act upon a properly-filed I-485 application.

5 U.S.C.

§ 555(b); Dong v. Chertoff, 513 F. Supp. 2d 1158, 1165-67 (N.D.
Cal. 2007); Yu v. Brown, 36 F. Supp. 2d 922, 931 (D.N.M. 1999).
Mandamus

is

therefore

an

appropriate

remedy

if

the

relevant

criteria are met.
As to the second argument, defendants point to no benefit,
tangible or intangible, that Hosseini enjoys as a result of the
indefinite hiatus in the determination of his I-485 application.
Nor do the defendants indicate that Hosseini would suffer any
adverse consequences should his application be denied.

To the

contrary, they indicate that if his application is denied, it
would be without prejudice to his right to immediately file a
renewed application.
Finally,

while

the

[R. 14-1, p. 16; Canaan Decl. at ¶ 30]
defendants

indicate
12

that

his

application

would “likely” be denied pursuant to one of the statutory bars
to adjustment of status found in § 1182(a)(3)(B), there is at
least some possibility that USCIS would conclude that Hosseini,
as a teenager, did not “afford material support” to a terrorist
organization within the meaning of § 1182(a)(3)(B)(iv) merely by
distributing literature provided by MEK and FEK.

Hosseini has

demonstrated sufficient prejudice flowing from USCIS’s refusal
to decide his I-485 for more than a decade to state a claim
under the APA.

Geneme, 935 F. Supp. 2d at 193.
C

Third,
fails

the

because

defendants
the

contend

12-year

that

delay

in

Hosseini’s
deciding

application is not unreasonable as a matter of law.
16-24]

APA
his

claim
I-485

[R. 14, pp.

The Administrative Procedure Act requires “each agency

[to] proceed to conclude a matter presented to it ... within a
reasonable time.” 5 U.S.C. § 555(b).

It further authorizes a

reviewing court to “compel agency action” that is “unlawfully
withheld” or “unreasonably delayed.”

5 U.S.C. § 706(1).

As a threshold matter, the defendants urge the Court to
analyze Hosseini’s APA claim under the “unreasonably delayed”
prong under § 706(1).
reaching

the

merits

Hosseini, and a number of those courts
of

an

APA

claim,

have

accepted

that

invitation.

[R. 20, pp. 12-14]; Geneme, 935 F. Supp. 2d at 192-

95;

2014

Islam,

WL

985545,

at
13

*4-7.

However,

defendants

acknowledge that all of the procedural prerequisites to making a
substantive determination on his application, such as background
and

security

action

on

rather

checks,

Hosseini’s

USCIS

has

have

been

completed,

application

affirmatively

has

not

withheld

and
been

making

that

further

delayed,
any

but

decision

since 2008 pursuant to internal policy memoranda requiring such
cases to be placed on “adjudicatory hold.”
11]

[R. 14, pp. 2-3, 9-

It is therefore reasonable to question whether Hosseini’s

APA claim ought not be analyzed to determine whether USCIS has
“improperly

withheld”

agency

action,

in

derogation

of

its

nondiscretionary obligation to adjudicate I-485 applications, as
a disjunctive ground for relief under the APA.

Cf. Beshir v.

Holder, 853 F. Supp. 2d 1, 10-11 (D.D.C. 2011); Oregon Natural
Desert Ass’n v. U.S. Forest Service, 312 F. Supp. 2d 1337 (D.
Or. 2004).

However, because the parties have instead proceeded

to analyze whether the application of USCIS’s adjudicatory hold
effected

an

Hosseini’s

“unreasonable

application,

delay”

the

Court

in
will

the

determination

adopt

that

mode

of
of

analysis.
To determine whether an agency’s delay in taking required
action

is

unreasonable,

courts

apply

the

six-factor

test

articulated by the District of Columbia Circuit in Telecomms.
Research & Action v. FCC, 750 F.2d 70 (D.C. Cir. 1984) (“TRAC”).
These include:
14

(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.
Id.

at

80;

see

Ahmed

v.

Holder,

No.

1:13-CV-271,

2013

WL

4544436, at *5 (N.D. Ohio Aug. 27, 2013).
Under
timetable

the
for

first
agency

and

second

action,

factors,

courts

absent

focus,

in

a

defined

part,

on

the

reasonableness of the delay, Geneme, 935 F. Supp. 2d at 193,
giving

due

implication
Islam,

consideration
of

2014

WL

to

the

terrorism-related
985545,

at

complexities
grounds

*5.

Even

for

added

by

the

inadmissibility.

accounting

for

that

complexity, courts have found delays of four years or less to be
reasonable,
unreasonable.
considering

but

that
Id.

delays

of

(collecting

exemptions

for

six

cases).

years

USCIS’s

terrorism-related
15

or

more
process

grounds

are
for
for

inadmissibility

is

not

a

basis

for

altering

this

analysis.

Geneme at 193.

Here, USCIS has possessed information relating

to Hosseini’s involvement with MEK and FEK since his wife’s
application for derivative asylum was filed in 2000, and readily
acknowledges that the sole basis for its failure to decide his
application

is

unrelated

to

his

application

itself

but

the

separate process of evaluating exemptions for the organizations
with which he associated 30 years ago.
difficulty

concluding

that

these

The Court has little

factors

strongly

support

a

determination that USCIS’s 12-year delay in deciding Hosseini’s
I-485 application is manifestly unreasonable.

Cf. Al Karim v.

Holder, No. 08-cv-671-REB, 2010 WL 1254840, at *3-4 (D. Colo.
Mar. 29, 2010); Kashkool v. Chertoff, 553 F. Supp. 2d 1131,
1143-44 (D. Ariz. 2008); Han Cao v. Upchurch, 496 F. Supp. 2d
569, 577 (E.D. Pa. 2007).
In light of the impediments to travel and adverse impacts
to his employment described by Hosseini in his complaint, the
third

factor

(which

prioritizes

the

need

for

prompt

administrative action when matters of health and human welfare
are

in

issue)

unreasonable.

likewise

suggests

that

USCIS’s

Kashkool, 553 F. Supp. 2d at 1145.

delay

is

Similarly,

the fifth factor (which accounts for prejudice resulting from
the

delay)

obtaining

supports
lawful

the

same

permanent

conclusion,

residence
16

as

status

any

delay

results

in

in
a

commensurate delay before full citizenship may be sought.
U.S.C.

§ 1427(a)

(lawful

permanent

resident

must

8

reside

continuously in the United States for five years before filing
an application for naturalization); Al Karim, 2010 WL 1254840,
at *4.
The fourth factor requires the Court to assess any adverse
impact an order compelling USCIS to adjudicate Hosseini’s I-485
application

would

have

upon

Court

does

not

lightly

for

the

Geneme, 935 F. Supp. 2d at 194.

agency’s time and energy.

competing

The

intrude

upon

priorities

agency

prerogatives

in

balancing such competing demands, but that reluctance must give
way

in

the

face

of

a

clear

need

to

require

agency

required by law but unsatisfied for over a decade.

action

Further,

given that the defendants indicate that Hosseini appears to face
an

inadmissibility

requiring

only

bar,

their

the

intrusion

determination

appears
whether

to

be

his

slight,
actions

constituted “affording material support” within the meaning of 8
U.S.C. § 1182(a)(3)(B)(iv).

And, as other courts have noted,

requiring adjudication of Hosseini’s I-485 application does not
require USCIS, having already determined not to exempt MEK from
the

terrorism-related

inadmissibility

bars,

to

make

the

same

unquestionably-involved but legally independent decision whether
to exempt FEK pursuant to 8 U.S.C. § 1182(d)(3)(B)(i).

Al–

Rifahe, 776 F. Supp. 2d at 937 (“Defendants provide no reason
17

why plaintiff’s application cannot be adjudicated immediately,
subject
policies

to

future

re-opening

regarding

[the

and

Oromo

Geneme, 935 F. Supp. 2d at 194.

review

when

Liberation

and

Front]

if

USCIS

change.”);

As for the sixth factor, there

is no evidence suggesting that USCIS acted with impropriety in
delaying
finding

a

decision

on

Hosseini’s

is

required

to

find

unreasonable under the APA.

that

application,
its

delay

but

was

no

such

nonetheless

Al–Rifahe at 937 n.7; Kashkool, 553

F. Supp. 2d at 1145.
Having

considered

all

of

the

TRAC

factors,

the

Court

reaches the almost inevitable conclusion that the 12-year delay
in

deciding

Hosseini’s

I-485

application

is

“unreasonably

delayed” within the meaning of 5 U.S.C. § 706(1) as a matter of
law.

The Court will therefore deny the defendants’ motion to

dismiss and for summary judgment, and will grant the plaintiff’s
motion for summary judgment.
Accordingly, IT IS ORDERED that:
1.

The defendants’ Motion to Dismiss the Complaint, or in

the Alternative for Summary Judgment [R. 14] is DENIED.
2.

Hosseini’s

Motion

for

Summary

Judgment

[R.

21]

is

GRANTED.
3.

The defendants are ORDERED to adjudicate Hosseini’s I-

485 application forthwith, but in no event more than sixty (60)
days after the entry of this Order.
18

This the 3rd day of April, 2014.

19