Camaj v. Dept of Homeland Security et al

Filing 17

OPINION AND ORDER granting 10 Motion to Dismiss. Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MARJAN CAMAJ,
Case No. 11-12503
Plaintiff,
Honorable John Corbett O’Meara
v.
DEPARTMENT OF HOMELAND SECURITY, et
al.,
Defendants.
/
OPINION AND ORDER
GRANTING DEFENDANTS’ OCTOBER 6, 2011 MOTION TO DISMISS
This matter came before the court on Defendants’ October 6, 2011 Motion to Dismiss, or in
the Alternative, Motion for Summary Judgment. Plaintiff Marjan Camaj filed a response November
18, 2011; and Defendants filed a reply brief December 23, 2011. Oral argument was heard January
26, 2012.
Plaintiff Marjan Camaj, from Montenegro, filed this action seeking an order to the United
States Citizenship and Immigration Services (“USCIS”) to adjudicate his Application for
Adjustment of Status. The action is brought under the Administrative Procedure Act (“APA”),
alleging that USCIS has withheld action on his application for over two years. Defendants argue
that this is not a “typical mandamus complaint,” as it is alleged that plaintiff Camaj “gave material
support” to a terrorist organization, the Kosovo Liberation Army (“KLA”) in 1998 and 1999.
Defendants contend that because of his involvement with the KLA, he is inadmissible and is thus
ineligible to adjust his status under 8 U.S.C. § 1182(a)(3)(B)(iv).

Rather than denying his application, however, USCIS has withheld adjudication of his case
pending the potential availability of discretionary relief. Therefore, it is USCIS’ decision to
withhold adjudication rather than a denial of his application that is at issue.
In Seydi v. USCIS, 779 F. Supp. 2d 714 (E.D. Mich. 2011), this court held that it lacks
jurisdiction to review decisions by USCIS to hold applications for adjustment of status in abeyance
pursuant to the agency’s March 26, 2008 policy memorandum.
. . . Congress has acted a number of times over the years to narrow the scope of
judicial review of immigration-related decisions. As pertinent here, section 242 of
the Immigration and Nationality Act (‘INA’) now includes a provision divesting the
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 Secretary of
Homeland Security.’ 8 U.S.C.§ 1252(a)(2)(B)(ii). Under this provision, then, the
Court cannot exercise jurisdiction over the present action if the handling of
Plaintiff’s application is properly viewed as a ‘decision or action’ by the Secretary
of Homeland Security on a matter committed to her discretion under the subchapter
of the INA of which § 1252 is a part.
Id. at 717.
The court concluded, “In the end, while the Court certainly urges Defendants to adjudicate
Plaintiff’s application with all possible dispatch, it is unable to traverse the narrow and winding path
conjured by Plaintiff for avoiding the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(B)(ii).” Id. at 720.
Here, too, the statute is a jurisdictional bar for plaintiff Camaj’s claims. Therefore, it is hereby
ORDERED that Defendants’ October 6, 2011 motion to dismiss is GRANTED.

s/John Corbett O'Meara
United States District Judge

Date: February 1, 2012

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I hereby certify that a copy of the foregoing document was served upon counsel of record on
this date, February 1, 2012, using the ECF system.

s/William Barkholz
Case Manager

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