Al Sawad v. Mayorkas et al

Filing 20

ORDER - Defendants' motion to dismiss or, in the alternative, for summary judgment 6 is GRANTED IN PART and DENIED IN PART. The motion is DENIED to the extent it seeks dismissal for lack of jurisdiction or for failure to state a claim. The m otion is GRANTED to the extent it seeks summary judgment on the merits of plaintiff's claims. Plaintiffs complaint 1 is DISMISSED WITH PREJUDICE AND ON THE MERITS. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion). Signed by Judge Patrick J. Schiltz on 08/07/12. (bjs)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
TALIB AL SAWAD,

Case No. 11-CV-2923 (PJS/JJK)
Plaintiff,

v.

ORDER

ALEJANDRO MAYORKAS, Director, U.S.
Citizenship and Immigration Services,
Washington, D.C.; and JANET
NAPOLITANO, Secretary, Department of
Homeland Security, Washington, D.C.,
Defendants.

Marc Prokosch, KARAM & ASSOCIATES, for plaintiff.
Durwood H. Riedel, UNITED STATES DEPARTMENT OF JUSTICE, for
defendants.
Plaintiff Talib Al Sawad applied to become a legal permanent resident of the United
States. United States Citizenship and Immigration Services (“USCIS”) denied Al Sawad’s
application because it found that he had engaged in terrorist activity and therefore was
inadmissible. A few months later, however, USCIS reopened Al Sawad’s application in order to
consider whether he should be granted discretionary relief from inadmissibility under a recently
amended federal statute. After waiting several years for a decision, Al Sawad filed this action to
compel USCIS and the Department of Homeland Security (“DHS”) to decide whether he should
be granted discretionary relief.
This matter is before the Court on defendants’ motion to dismiss or, in the alternative, for
summary judgment. For the reasons stated below, the Court finds that it has jurisdiction over this

action and therefore denies defendants’ motion to dismiss. The Court also determines, however,
that defendants are entitled to summary judgment on the merits of Al Sawad’s claim.
I. BACKGROUND
Al Sawad is an Iraqi who was admitted to the United States in 1996 as a refugee.1 Defs.’
Ex. 1 ¶ 3. In December 2004, Al Sawad submitted a Form I-485 application to become a legal
permanent resident. Defs.’ Ex. 1 ¶ 4. USCIS denied Al Sawad’s application in January 2008
after finding that he was inadmissible under 8 U.S.C. § 1182(a)(3)(B). Defs.’ Ex. 1 ¶ 5. Broadly
speaking, § 1182(a)(3)(B) renders inadmissible any alien who has engaged in terrorist activity.
Al Sawad was found inadmissible under this provision because he participated in the March 1991
uprising against the Iraqi government in Basra, Iraq. Defs.’ Ex. 1 ¶¶ 5, 14-15. The combat
activities of the participants in the Basra uprising bring them within the definition of what is
commonly called a “Tier III” terrorist organization. Defs.’ Ex. 1 ¶ 14; 8 U.S.C.
§ 1182(a)(3)(B)(vi)(III) (defining a “terrorist organization” to include “a group of two or more
individuals, whether organized or not, which engages in, or has a subgroup which engages in”
certain statutorily defined terrorist activities).
Section 1182 contains a discretionary exemption from the terrorism-related
inadmissibility provisions of § 1182(a)(3)(B). This discretionary exemption was significantly
broadened in December 2007. As amended, § 1182(d)(3)(B) states, in relevant part:
The Secretary of State, after consultation with the Attorney General
and the Secretary of Homeland Security, or the Secretary of
Homeland Security, after consultation with the Secretary of State
and the Attorney General, may determine in such Secretary’s sole
1

Al Sawad alleges that he is an asylee. Compl. ¶ 7. In his briefing, however, he admits
that he is a refugee. ECF No. 16 at 2. The distinction makes no difference in this case.
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unreviewable discretion that subsection (a)(3)(B) of this section
shall not apply with respect to an alien within the scope of that
subsection or that subsection (a)(3)(B)(vi)(III) of this section shall
not apply to a group within the scope of that subsection . . . .
Under Section 1182(d)(3)(B), then, defendants have the discretion to exempt Al Sawad from the
terrorism-related inadmissibility provisions of § 1182(a)(3)(B). But Al Sawad has been eligible
for a possible exercise of this discretion only since § 1182 was broadened in December 2007.
See Debba v. Heinauer, 366 Fed. Appx. 696, 697-98 (8th Cir. 2010) (per curiam) (explaining the
relevant statutory history); Al-Rifahe v. Mayorkas, 776 F. Supp. 2d 927, 929-30 (D. Minn. 2011)
(same).
In March 2008 — about three months after § 1182 was amended, and about two months
after Al Sawad’s I-485 application was denied — USCIS issued a policy memorandum directing
its field agents to reopen and place on hold any I-485 applications that had been denied and that
might be considered for a discretionary exemption under § 1182(d)(3)(B) in the future. Defs.’
Ex. 1 ¶ 6. Pursuant to this directive, Al Sawad’s I-485 application was reopened and placed on
hold in April 2008. Defs.’ Ex. 1 ¶ 6. After waiting for several years for a decision, Al Sawad
filed this action in October 2011, seeking to compel defendants to adjudicate his pending I-485
application.
II. ANALYSIS
Defendants move to dismiss for lack of jurisdiction and, in the alternative, move for
summary judgment on the merits of Al Sawad’s claim. The Court considers each argument in
turn.

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A. Motion to Dismiss
Al Sawad filed this action under the Administrative Procedure Act (“APA”), 5 U.S.C.
§§ 551 et seq., alleging that defendants have unreasonably delayed the adjudication of his
pending I-485 application.2 The APA explicitly gives courts the authority to “compel agency
action unlawfully withheld or unreasonably delayed[.]” 5 U.S.C. § 706(1); see also Califano v.
Sanders, 430 U.S. 99, 105 (1977) (courts have jurisdiction under 28 U.S.C. § 1331 over suits
against agencies seeking to enforce provisions of the APA). Many courts have held that,
although the government cannot be compelled to grant an I-485 application, the government
nonetheless has a mandatory, nondiscretionary duty to adjudicate an I-485 application within a
reasonable time. See Al-Rifahe, 776 F. Supp. 2d at 932-33. Indeed, the government conceded as
much at oral argument. Al Sawad thus has a right to challenge as unreasonable the government’s
delay in adjudicating his application, unless there is some other law that would deprive the Court
of jurisdiction.
Defendants argue that the Court is deprived of jurisdiction over Al Sawad’s claim by
virtue of 8 U.S.C. § 1252(a)(2)(B). Section 1252(a)(2)(B), which is entitled “Denials of
discretionary relief,” states, in relevant part:

2

In his complaint, Al Sawad also asked the Court to order defendants to issue
implementing regulations that could be applied to him. Compl. ¶ 1. In briefing defendants’
motion, however, Al Sawad said very little about this aspect of his claim. In particular, he did
not identify the source of any duty on defendants’ part to issue implementing regulations. At oral
argument, Al Sawad contended that because his I-485 application cannot be adjudicated without
implementing regulations, and because he is entitled to have his I-485 application adjudicated, he
is also entitled to have implementing regulations issued. The flaw in Al Sawad’s argument is
that USCIS could deny his I-485 application at any time without the issuance of implementing
regulations. Indeed, USCIS has already denied Al-Sawad’s application once.
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Notwithstanding any other provision of law . . . and regardless of
whether the judgment, decision, or action is made in removal
proceedings, no court shall have jurisdiction to review —
(i) any judgment regarding the granting of relief
under section 1182(h), 1182(i), 1229b, 1229c, or
1255 of this title, or
(ii) any other 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,
other than the granting of relief under section
1158(a) of this title.
As this Court has previously held, however, § 1252(a)(2)(B) does not deprive it of
jurisdiction when a plaintiff seeks to compel agency action to which he is entitled. “[T]he
Attorney General has discretion over what a decision will be, but not over whether a decision
will be made; the Attorney General does not have discretion to refuse to exercise his discretion.”
Al Jabari v. Chertoff, 536 F. Supp. 2d 1029, 1035 (D. Minn. 2008). Although the ultimate
decision whether to grant or deny Al Sawad’s application is discretionary, defendants do not have
discretion to unreasonably delay making a decision or to make no decision at all. See Al-Rifahe,
776 F. Supp. 2d at 932-33 (citing cases). The Court therefore rejects defendants’ argument that
the Court lacks subject-matter jurisdiction.3

3

Defendants also argue that Al Sawad both lacks standing and fails to state a claim under
the APA because he is not currently suffering any injury. The Court disagrees. The APA gives
Al Sawad the right to a timely decision on his I-485 application, and the alleged failure to
provide him a timely decision deprives him of that right, which is all the injury necessary to
establish standing and to state an APA claim. Moreover, even if a greater showing of injury were
necessary, the anxiety suffered by Al Sawad because of continued uncertainty about his legal
status is sufficient both to establish standing and to state a claim.
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B. Motion for Summary Judgment
Defendants argue, in the alternative, that they are entitled to summary judgment because
the delay in adjudicating Al Sawad’s application is reasonable as a matter of law. The parties
agree that, in determining the merits of Al Sawad’s claim of unreasonable delay, the Court
should weigh the factors identified in Telecommunications Research & Action Center v. Federal
Communications Commission, 750 F.2d 70 (D.C. Cir. 1984) (“TRAC”). The TRAC factors are:
(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 (internal citations and quotations omitted).
A consideration of these factors leads the Court to conclude that defendants are entitled to
summary judgment. The only factor that weighs in Al Sawad’s favor is the third: Broadly
speaking, Al Sawad’s attempt to become a legal permanent resident implicates humanitarian
rather than purely economic concerns. The remaining factors, however, militate in favor of the
government. In particular, the first and fourth factors, which essentially involve a consideration
of the reason for the delay, weigh heavily in the government’s favor.
Many immigration cases in which courts have found unreasonable delay involve
ministerial-type duties to perform a record search or conduct a security check. See, e.g., Hong
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Wang v. Chertoff, 550 F. Supp. 2d 1253, 1254-55, 1260-61 (W.D. Wash. 2008) (finding a threeyear delay in processing plaintiff’s “name check” to be unreasonable). This case is on a much
different footing. It involves a sensitive and entirely discretionary grant of relief that implicates
national security, foreign policy, and humanitarian concerns. The decisionmaking process
requires consultation between two Cabinet-level officials and the head of USCIS. The record
demonstrates that these officials have regularly been exercising their authority under
§ 1182(d)(3)(B). See Defs.’ Ex. 1 ¶¶ 19-20 (June 2008 discretionary decision to permit relief for
persons associated with ten listed organizations); id. ¶ 21 (September 2009 discretionary decision
to permit relief for persons associated with the Iraqi National Congress, the Kurdistan
Democratic Party, and the Patriotic Union of Kurdistan); id. ¶ 22 (January 2011 discretionary
decision to permit relief for persons associated with the All India Sikh Students Federation-Bittu
faction and the All Burma Students Democratic Front); id. ¶ 23 (March 2011 discretionary
decision to permit relief for persons who, under duress, engaged in military-type training or
solicited for funds or members for terrorist organizations); id. ¶ 24 (November 2011
discretionary decision to permit relief, in certain circumstances, for persons who voluntarily
provided medical care to members of terrorist organizations); id. ¶ 29 (between mid-2006 and
November 30, 2011, USCIS granted a total of 14,064 exemptions in cases involving terroristrelated inadmissibility grounds). This list well illustrates the number and diversity of the
organizations and circumstances implicated by the discretionary authority in § 1182(d)(3)(B) and
makes clear the complexity and sensitivity of the decisions that government officials must make
under that statute.

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The record also demonstrates that USCIS personnel have been doing what they can to
expedite the processing of Al Sawad’s application. Al Sawad has been fingerprinted five times
(most recently in January 2011) to ensure that his case will be ready to be adjudicated once all
other issues are resolved. Defs.’ Ex. 1 ¶ 10. In addition, Al Sawad’s preliminary security checks
and FBI name checks have been completed. Defs.’ Ex. 1 ¶¶ 11-12. In short, the record indicates
that the government is not acting arbitrarily or indifferently in delaying adjudication of Al
Sawad’s application. Instead, field agents are doing what they can to keep Al Sawad’s
information current while higher-level officials are considering whether those who participated in
the 1991 Basra uprising may be eligible for the exercise of discretionary relief.
With respect to the second factor, which concerns whether there is any congressionally
indicated timeline for decision: Some courts have noted that, in 8 U.S.C. § 1571(b), Congress
expressed its “sense . . . that the processing of an immigration benefit application should be
completed not later than 180 days after the initial filing of the application . . . .” As other courts
have noted, however, the decision whether to grant discretionary relief under § 1182(d)(3)(B) is a
special circumstance that takes a case well outside of § 1571(b). See Ayyoubi v. Holder, No. 101881, 2011 WL 2983462, at *8 (E.D. Mo. Jul. 22, 2011) (“However, 8 U.S.C. § 1571 appears to
apply generally to ‘immigration benefit applications,’ whereas plaintiff’s circumstances present a
special case.”). The exercise of purely discretionary relief by Cabinet-level officials under
§ 1182(d)(3)(B) is akin to a policymaking function that is qualitatively different from gardenvariety individual determinations of eligibility for immigration benefits. The Court therefore
does not give § 1571(b) much weight in determining the reasonableness of the delay.

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The fifth factor concerns the nature and extent of the interests prejudiced by the delay.
Al Sawad claims to be suffering considerable prejudice, but most of the prejudice that he
identifies stems from the failure to grant his application, not from the delay in adjudicating his
application. For example, Al Sawad complains that he is unable to apply for citizenship and that
his ability to travel is limited. But to take this type of prejudice into account would be to assume
that Al Sawad’s I-485 application will be granted. That, however, is not the issue here. No one
contends that this Court has the power to compel USCIS to grant Al Sawad’s I-485 application.
Instead, Al Sawad is merely asking the Court to require USCIS to make a decision, whether
favorable or unfavorable. Because Al Sawad cannot compel USCIS to grant his application, he
cannot rely on the prejudice he suffers from the failure to grant it.4 (Indeed, defendants argue,
with some force, that if they are compelled to make a decision now, they will simply deny Al
Sawad’s application. Defs.’ Ex. 1 ¶ 31.) Instead, Al Sawad can only rely on the prejudice he
suffers from not knowing whether his application will be granted or denied.
The Court does not mean to make light of this prejudice. There is no question that
existing in legal limbo is difficult — and existing in legal limbo for many years can have a
substantial impact on a person’s life. Nevertheless, unlike the other forms of prejudice on which
Al Sawad would like to rely, the anxiety caused by the delay is not a particularly concrete or
quantifiable form of prejudice. Moreover, it is worth noting that Al Sawad himself did not apply
4

It is worth noting that, even taking into account the prejudice that Al Sawad suffers from
the lack of a favorable decision, Al Sawad has not made a particularly compelling showing. The
government has granted him travel authorization on three occasions. Defs.’ Ex. 1 ¶ 33. In
addition, because Al Sawad is a refugee, the effective date of his lawful permanent residence
(should he attain that status) will be the date that he entered the United States. Defs.’ Ex. 1 ¶ 8.
Thus, the delay in adjudicating his I-485 application is not preventing Al Sawad from obtaining
the required five years of lawful permanent residence necessary to be eligible for citizenship. Id.
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to become a legal permanent resident until he had already been in the United States for eight
years, Defs.’ Ex. 1 ¶ 4, which undermines his claim that he has been substantially harmed by the
uncertainty of his status.
Finally, the sixth factor, which states that delay may be unreasonable even if there is no
government impropriety behind it, does not add anything to the analysis in this case. There is no
suggestion that impropriety has played any part in delaying Al Sawad’s application.
Based on the TRAC factors, the Court concludes that the delay in this case is reasonable.
Indeed, this case is very like Debba, in which the Eighth Circuit found a much longer delay to be
reasonable. Debba, 366 Fed. Appx. at 697, 699 (finding that delay was reasonable where
plaintiff’s I-485 application had been pending since 2000); see also Rambang v. Mayorkas,
No. 11-3454 (JRT/JJK), 2012 WL 2449927, at *1 (D. Minn. June 27, 2012) (finding a nearly
four-year delay in a similar case to be reasonable under the circumstances).
Al Sawad compares this case to Al-Rifahe, in which the court distinguished Debba and
denied the government’s motion for summary judgment on the reasonableness of the delay. AlRifahe, 776 F. Supp. 2d at 938. Al-Rifahe is distinguishable on several grounds, however. To
begin with, the 13-year delay in Al-Rifahe dwarfs the 4-year delay in this case. Al Sawad’s
application was denied in 2008 and was reopened shortly thereafter for consideration of the
discretionary exemption under § 1182(d)(3)(B). Al Sawad’s current application, therefore, has
only been pending since 2008. In addition, in Al-Rifahe the government had already issued a
policy memorandum stating that members of the organization to which the plaintiff had belonged
could be considered for a discretionary exemption from inadmissibility. Al-Rifahe, 776 F. Supp.
2d at 930. All that remained was an evaluation of the plaintiff’s individual circumstances,
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making it harder to justify the delay. Id. at 938 (“the government’s argument regarding the
lengthy process of assessing Tier III organizations is severely undermined in Al-Rifahe’s case by
the January 2010 memorandum determining that applications on hold because of the applicant’s
association with the INC may be considered for an exemption”). Here, by contrast, the
government has not yet decided whether participants in the 1991 Basra uprising should be
considered for discretionary relief.
*

*

*

*

In sum, the decision that Al Sawad wants this Court to order defendants to make requires
a great deal of interagency consultation and a significant investment of resources on the part of
high-level government officials. It also requires the careful weighing of sensitive nationalsecurity and foreign-policy concerns. The officials vested with the authority to weigh these
concerns have not been idle; they have been investing their time and using their discretion to
examine the many and varied groups around the world that may be eligible for relief. The
complete discretion enjoyed by these officials under § 1182(d)(3)(B), combined with the
immensity and difficulty of their task, counsels that courts should be very reluctant to secondguess the priority they have placed on any one individual’s case. Although Al Sawad is certainly
suffering some prejudice from the uncertainty created by the delay in the adjudication of his I485 application, that prejudice is relatively minor, and it does not come close to outweighing the
factors demonstrating the reasonableness of the delay. Cf. Rambang, 2012 WL 2449927, at *7
(“As noted above, the exemption process in terrorism-related inadmissibility cases is a complex,
sensitive, and potentially lengthy one. Rambang’s evidence — had he submitted any — would
therefore have needed to demonstrate substantial harm outweighing the government’s interest in
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completing this delicate process.” (internal citation omitted)). Defendants’ motion for summary
judgment is therefore granted.
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS
HEREBY ORDERED THAT:
1.

Defendants’ motion to dismiss or, in the alternative, for summary judgment
[Docket No. 6] is GRANTED IN PART and DENIED IN PART.

2.

The motion is DENIED to the extent it seeks dismissal for lack of jurisdiction or
for failure to state a claim.

3.

The motion is GRANTED to the extent it seeks summary judgment on the merits
of plaintiff’s claims.

4.

Plaintiff’s complaint [ECF No. 1] is DISMISSED WITH PREJUDICE AND ON
THE MERITS.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: August 7 , 2012

s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge

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