Rambang v. Mayorkas et al

Filing 20

MEMORANDUM OPINION AND ORDER denying 4 Motion to Dismiss for Lack of Jurisdiction; denying 4 Motion to Dismiss/General; granting 4 Motion for Summary Judgment (Written Opinion). Signed by Judge John R. Tunheim on June 27, 2012. (DML)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
BIEL RAMBANG,

Civil No. 11-3454 (JRT/JJK)
Plaintiff,

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

MEMORANDUM OPINION
AND ORDER ON
DEFENDANTS’ COMBINED
MOTION TO DISMISS AND
MOTION FOR
SUMMARY JUDGMENT

Defendants.

Marc Prokosch, KARAM & ASSOCIATES, 2950 Metro Drive, Suite 201,
Bloomington, MN 55425, for plaintiff.
Erin E. Brizius, U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION,
Office of Immigration Litigation District Court Services, P.O. Box. 868
Ben Franklin Station, Washington, DC 20044; Mary J. Madigan, Assistant
United States Attorney, UNITED STATES ATTORNEY’S OFFICE,
600 United States Courthouse, 300 South Fourth Street, Minneapolis, MN
55415, for defendants.

Plaintiff Biel Rambang, a native and citizen of Sudan, seeks to compel
adjudication of his I-485 application for adjustment of status. From 1983 to 1998,
Rambang was a member of the Sudan People’s Liberation Army (“SPLA”), a group that
falls within the definition of a Tier III undesignated terrorist organization as defined in
the Immigration and Nationality Act (“INA”). Rambang’s application is currently on
hold because the Secretary of Homeland Security has yet to decide whether SPLA
members are eligible for an exemption to inadmissibility. Defendants have moved to

25

dismiss for lack of subject matter jurisdiction and failure to state a claim; defendants have
also moved in the alternative for summary judgment. Because the Court concludes that
the Secretary’s approximately four-year delay in processing Rambang’s application is
reasonable under the circumstances, the Court will grant defendants’ motion for summary
judgment. The motion will be denied in all other respects.

BACKGROUND
Plaintiff Biel Rambang, a native and citizen of South Sudan, is an asylee and
applicant for Lawful Permanent Resident (“LPR”) status in the United States. (Compl.
¶¶ 4, 7, Nov. 28, 2011, Docket No. 1.) Rambang entered the United States in 1996 as a
temporary visitor for pleasure; he applied for and received asylum in 1999. (Decl. of
Julia Wilcox ¶ 3, Feb. 3, 2012, Docket No. 7.) Rambang’s asylum claim indicated that
he joined and received training from the SPLA, for which he later served as an armed
combatant, officer, and representative. (Id. ¶ 5.) In June 2006, Rambang applied to
adjust his status from asylee to lawful permanent resident. (Id. ¶ 4; Compl. ¶ 7.) In
February 2008, the United States Citizenship and Immigration Service (“USCIS”) denied
the adjustment application because of Rambang’s admitted affiliation with the SPLA, a
group that falls within the definition of a Tier III undesignated terrorist organization, as
defined in the INA. (Wilcox. Decl. ¶ 5.) 1

1

8 U.S.C. § 1182(a)(3)(B)(i) bars admission of, inter alia, persons that have “engaged in
a terrorist activity,” which includes being a member of a terrorist organization.

-2-

The Consolidated Appropriations Act (“CAA”) of 2008, Pub. L. No. 110-161, 121
Stat. 1844 (2007), enabled the Secretary of Homeland Security, in consultation with the
Secretary of State and the Attorney General, to exercise discretionary authority to make
exceptions to inadmissibility grounds relating to Tier III organizations. Panchishak v.
U.S. Dep’t of Homeland Sec., No. 08-6448, 2010 WL 3958772, at *1 (S.D.N.Y. Sept. 29,
2010).

Under the CAA, if a person committed a terrorist act under INA

Sec. 212(a)(3)(B) on behalf of a Tier III organization, and that person does not pose a
threat to the United States, then that person is eligible for a discretionary exemption to the
applicability of INA Sec. 12(a)(3)(B)’s bar. Accordingly, while providing “material
support” to terrorist organizations, including undesignated Tier III entities, renders an
alien inadmissible under 8 U.S.C. § 1182(a)(3)(B)(iv)(IV), the Secretary of Homeland
Security retains “sole unreviewable discretion” to exempt individuals from that
categorical bar under 8 U.S.C. § 1182(d)(3)(B)(i).

As the SPLA is a Tier III

organization, this provision is applicable to Rambang.
On March 26, 2008, USCIS issued a policy memorandum directing field officers
to reopen and place on hold any applications that had been denied because of terroristrelated inadmissibility for which the Secretary of the Department of Homeland Security
may issue an exemption in the future.

(Wilcox Decl. ¶ 6.)

On April 29, 2008,

Rambang’s application was accordingly reopened and placed on hold. (Id.) Rambang’s
application for adjustment of status remains pending. (Id. ¶ 13.)
The Secretary has exempted many groups and individuals from inadmissibility
since Rambang’s application, though the affected groups did not include the SPLA. (Id.
-3-

¶¶ 17-24, 26.) Indeed, “[b]etween mid-2006 and November 30, 2011, USCIS has granted
a total of 14,064 exemptions in cases involving terrorist-related inadmissibility grounds.”
(Id. ¶ 29.)

“Consideration of additional exercises of the Secretary’s discretionary

exemption authority continues, with a number of exemptions under discussion at the
interagency level.” (Id. ¶ 25.)
USCIS avers that “[t]he procedure for a new exercise of the Secretary of
Homeland Security’s discretionary exemption authority . . . is intentionally deliberative.”
(Id. ¶ 27.)
Various factors, including national security, humanitarian, and foreign
policy concerns, must be weighed carefully before a decision is made.
There is much interagency discussion on how best to approach and tailor
particular exemptions. The large number of possible exemptions that may
be considered, combined with the deliberative nature of the process, causes
significant time to pass before adjudications ultimately can take place.
(Id.)
According to USCIS, if it were ordered to adjudicate Rambang’s application for
status adjustment, “the case would likely be denied without prejudice to allow Plaintiff to
re-file.”

(Id. ¶ 31.)

“USCIS intends to adjudicate [Rambang’s] application for

adjustment of status . . . at such time as an exercise of the discretionary exemption
authority that would apply to [Rambang] becomes available, and accompanying formal
policy guidance authorizing adjudication is issued.” (Id. ¶ 32.) In the meanwhile,
Rambang has been granted a work permit every time he requested one, and has applied
for and been granted a travel document on at least seven occasions. (Id. ¶ 33.)
In this action, Rambang asks the Court to “order defendants to timely disseminate
regulations to implement exemptions enacted by Congress in 2007 regarding such
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inadmissibilities and to timely apply those regulatory guidelines to Plaintiff, and
adjudicate his pending application for unlawful permanent residency.” (Compl. ¶ 1.)
Defendants move to dismiss on the grounds that the Court lacks subject matter
jurisdiction and that the complaint fails to state a claim upon which relief can be granted
or, in the alternative, for summary judgment on the ground that the hold on Rambang’s
application has not resulted in an unreasonable delay.

ANALYSIS
I.

STANDARDS OF REVIEW
A.

Motion to Dismiss for Lack of Subject Matter Jurisdiction

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1)
challenges the Court’s subject matter jurisdiction and requires the Court to examine
whether it has authority to decide the claims. Uland v. City of Winsted, 570 F.Supp.2d
1114, 1117 (D. Minn. 2008). It is the plaintiff’s burden to establish that jurisdiction
exists. Osborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990). In deciding a motion
to dismiss for lack of subject matter jurisdiction, the Court is “free to weigh the evidence
and satisfy itself as to the existence of its power to hear the case.” Id. If the Court finds
that jurisdiction is not present, it must dismiss the matter. Fed. R. Civ. P. 12(h)(3);
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583-84 (1999).

B.

Motion to Dismiss for Failure to State a Claim

Although a complaint need not contain “detailed factual allegations” to survive a
motion to dismiss, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment]
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to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (internal citations omitted).

The complaint must plead facts that render a

defendant’s liability plausible – not merely possible. Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009). In reviewing a complaint on a motion to dismiss the Court takes as true all
allegations in the complaint, which it construes in the light most favorable to the
nonmoving party. Carton v. Gen. Motors Acceptance Corp., 611 F.3d 451, 454 (8th Cir.
2010). It must not, however, give effect to conclusory allegations of law. Stalley v.
Catholic Health Initiatives, 509 F.3d 517, 521 (8th Cir. 2007).

C.

Motion for Summary Judgment

Summary judgment is appropriate where there are no genuine issues of material
fact and the moving party can demonstrate that it is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). A fact is material if it might affect the outcome of the suit,
and a dispute is genuine if the evidence is such that it could lead a reasonable jury to
return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A court considering a motion for summary judgment must view the facts in the
light most favorable to the non-moving party and give that party the benefit of all
reasonable inferences that can be drawn from those facts. Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

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II.

DEFENDANTS’
JUDGMENT
A.

MOTION

TO

DISMISS

OR

FOR

SUMMARY

Motion to Dismiss

Defendants move to dismiss Rambang’s complaint for lack of subject matter
jurisdiction and failure to state a claim upon which relief may be granted. The Court
addresses each potential ground for dismissal in turn, and concludes that subject matter
jurisdiction is present and that Rambang’s complaint states a claim under the
Administrative Procedures Act (“APA”).

1.

Subject Matter Jurisdiction

Defendants argue that 8 U.S.C. § 1252(a)(2)(B)(ii), which relates to judicial
review of discretionary decisions, divests the Court of jurisdiction to consider Rambang’s
complaint.2 This Court recently noted the division among district courts on the question

2

To the extent defendants argue that the “sole unreviewable discretion” language of
8 U.S.C. § 1182(d)(3)(B)(i) places the timing of the Secretary’s potential future exemption of
Rambang from inadmissibility wholly outside the reach of judicial review, the Court disagrees.
As Judge Conti aptly stated:
By its own language, [8 U.S.C. § 1182(d)(3)(B)(i)] only precludes judicial review
of exemptions to terrorism-related inadmissibility. Plaintiff does not challenge
such an exemption. Plaintiff challenges the express decision of USCIS to place
his application on hold. Despite the Government’s assertion to the contrary,
nothing in the statute governing adjustment of an asylee’s status, 8 U.S.C.
§ 1159(b), or the statute governing exemptions for terrorism-related
inadmissibility, 8 U.S.C. § 1182(d)(3)(B)(i), vests the Secretary of Homeland
Security or the Attorney General with the discretion to place applications for
adjustment on indefinite hold without being subjected to judicial review. That the
decision whether or not to make an exemption for a terrorism-related
inadmissibility determination is complicated and may involve significant national
security concerns does not strip this Court of jurisdiction.
(Footnote continued on next page.)

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of whether section 1252(a)(2)(B)(ii) strips courts of jurisdiction to consider claims that
the government has unreasonably delayed the disposition of an I-485 application. AlRifahe v. Mayorkas, 776 F. Supp. 2d 927, 932, 938 (D. Minn. 2011). The Court squarely
addressed the split and found more compelling the reasoning of the “overwhelming
majority of district courts,” which hold that the provision does not “provide[] blanket
cover for USCIS’ decision to withhold adjudication of [plaintiff’s] application
indefinitely.” Id. at 932-33; see also Al Jabari v. Chertoff, 536 F. Supp. 2d 1029, 1035
(D. Minn. 2008) (“[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.”).
Defendants have presented no compelling reason to revisit that holding, and the
Court declines to do so.3

Because the Court has already decided that section

1252(a)(2)(B)(ii) does not divest it of jurisdiction to consider claims of unreasonable
delay in processing I-485 applications, defendants’ motion to dismiss on that ground will
be denied.

____________________________________
(Footnote continued.)

Kahn v. Scharfen, No. 08-1398, 2009 WL 941574, at *6 (N.D. Cal. Apr. 6, 2009).
3

The Court has reviewed the recent decisions on which defendants rely, and finds that
they offer no persuasive reason to reconsider the finding of jurisdiction in Al-Rifahe. See Camaj
v. DHS, No. 11-12503, slip. op. (E.D. Mich. Feb. 1, 2012) (citing Seydi v. U.S. Citizenship and
Immigration Servs., No. 10-10925, 2011 WL 1135553, at *4 (E.D. Mich. Mar. 28, 2011));
Alghadbawi v. Napolitano, No. 10-1330, 2011 WL 4390084, at *3-5 (S.D. Ind. Sept. 19, 2011).

-8-

In the absence of a bar to jurisdiction, Rambang must demonstrate an affirmative
basis for subject matter jurisdiction.4

“Although the APA does not provide an

independent basis for subject matter jurisdiction, ‘[i]t is black-letter law that federal
courts have jurisdiction under [28 U.S.C.] § 1331 [federal question statute] over suits
against agencies seeking to enforce provisions of the APA.’” Al-Rifahe, 776 F. Supp. 2d
at 934 (quoting Ali v. Frazier, 575 F. Supp. 2d 1084, 1088 (D. Minn. 2008)); see also
Black Hills Inst. of Geological Research v. S.D. Sch. of Mines & Tech., 12 F.3d 737, 740
(8th Cir. 1993). Under the APA, “[a] person suffering legal wrong because of agency
action, or adversely affected or aggrieved by agency action within the meaning of a
relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. The reviewing
court may “compel agency action unlawfully withheld or unreasonably delayed[.]”
5 U.S.C. § 706(1); see also id. § 555(b) (“With due regard for the convenience and
necessity of the parties or their representatives and within a reasonable time, each agency
shall proceed to conclude a matter presented to it.”). As this Court observed in Al-Rifahe,
it is well established in this District “that the government has a non-discretionary duty to
act on I-485 applications under the APA.” Al-Rifahe, 776 F. Supp. 2d at 935. The
federal question statute, therefore, supplies subject matter jurisdiction for Rambang’s suit
to compel action on his I-485 application under the APA.
4

Rambang’s complaint alleges that jurisdiction is proper under the Declaratory Judgment
Act, 28 U.S.C. § 2201; the Equal Access to Justice Act, 28 U.S.C. § 2412(d); the Administrative
Procedures Act (APA), 5 U.S.C. §§ 551 et seq. and 701 et seq.; and 28 U.S.C. § 1331. Because
the Court finds that jurisdiction exists under 28 U.S.C. § 1331 and the APA, it does not reach the
other potential bases of jurisdiction.

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2.

Failure to State a Claim

Defendants next argue that Rambang’s complaint must be dismissed under Rule
12(b)(6) for failure to state a claim. To state a claim for unreasonable delay under the
APA, the delay must result in some harm to the plaintiff.

See Norton v. S. Utah

Wilderness Alliance, 542 U.S. 55, 64 (2004) (“Under the terms of the APA, respondent
must direct its attack against some particular ‘agency action’ that causes it harm.”). More
specifically, defendants argue that the complaint fails to state a claim because Rambang’s
allegations of harm stemming from the delay are at best speculative, and in fact Rambang
actually benefits from the current hold because, were his application to be considered
immediately, it would likely be denied.
The complaint alleges that Rambang has suffered harm in the form of being
“unable to move forward with his life . . . deprived of his peace of mind . . . and deprived
of important benefits, rights, and protections to which he would be entitled as a Lawful
Permanent Resident of the United States.” (Compl. ¶ 10.) While these allegations of
harm are somewhat spare, construing the facts in the light most favorable to Rambang –
as it must on defendants’ motion – the Court finds that they are sufficient to allege the
required harm.5

5

See Islam v. Heinauer, No. 10-04222, 2011 WL 2066661, at *4 (N.D. Cal. May 25,
2011) (denying government’s 12(b)(6) motion where plaintiff alleged that lawful permanent
resident status confers many advantages over asylee status including the ability to reside and
work permanently in the United States and to travel freely outside the United States); see also
Al Karim v. Holder, No. 08-00671, 2010 WL 1254840, at *4 (D. Colo. Mar. 29, 2010)
(observing in the summary judgment context that the “indefinite nature of the delay in
(Footnote continued on next page.)

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Moreover, while defendants aver that denial of Rambang’s application is the likely
outcome, they do not foreclose the possibility that it could be granted. See Hassane v.
Holder, 2010 WL 2425993, No. C10-314Z, at *4 (W.D. Wash. June 11, 2010)
(concluding that because the government did not foreclose the possibility that plaintiff’s
I-485 application would be granted “it is possible that [plaintiff] will benefit by having a
final adjudication of his application, and dismissal under Rule 12(b)(6) is not
appropriate.”). More fundamentally, the prejudice Rambang alleges stems from further
delay, not from the likely denial of his application. Rambang apparently recognizes the
prospect that his application may be denied. If it is denied, Rambang can carry on
seeking whatever relief may be available in that event, which may well be an
improvement over the current state of affairs. See AlShamsawi v. Holder, No. 10-194,
2011 WL 1870284, at *3-4 (D. Utah May 16, 2011). In sum, the Court finds that the
complaint sufficiently alleges harm stemming from the delay and that it is plausible that
Rambang would benefit from immediate adjudication of his adjustment of status
application. Defendants’ motion to dismiss for failure to state a claim will therefore be
denied.

____________________________________
(Footnote continued.)

adjudicating his application has real and not insubstantial effects on plaintiff’s life and livelihood
. . . . Perhaps most critically, the delay of the final adjudication of plaintiff’s application
necessarily delays his goal of becoming a U.S. citizen.”).

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B.

Motion for Summary Judgment

Defendants finally argue that summary judgment is warranted because there is no
genuine dispute of material fact. The only question before the Court is whether the delay
in adjudicating Rambang’s application is unreasonable as a matter of law. See 5 U.S.C.
§ 706(1). As the cases make plain, whether delay is unreasonable in the context of
immigration applications is a highly fact-intensive inquiry. See, e.g., Sawad v. Frazier,
No. 07-1721, 2007 WL 2973833, at *4-5 (D. Minn. Oct. 9, 2007). The Court assesses the
reasonableness of delay in terms of the so-called TRAC factors.

Al-Rifah, 776

F. Supp. 2d at 936 (citing Telecomms. Research & Action v. Fed. Commc’n Comm’n
(TRAC), 750 F.2d 70, 80 (D.C. Cir. 1984)). The 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.
TRAC, 750 F.2d at 80 (quotation marks and citations omitted).
The first and second factors relate to the rule of reason – whether statutory
timetable or other indication of pace – governing the agency’s decision-making process.
Id.

The statutes governing an adjustment of status application and authorizing the

Secretary’s discretion to issue exemptions do not provide a specific time frame within
which USCIS must act. See 8 U.S.C. § 1159(b), 1182(d)(3)(B)(i). USCIS must therefore
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process Rambang’s application within a reasonable time. See 5 U.S.C. §§ 555(b), 706(1);
see also, e.g., Hassane, 2010 WL 2425993, at *4.
Though Rambang argues that the delay is arbitrary because defendants have given
no indication of when his application will be adjudicated, he disputes neither that the
application is on hold because of his admitted connection with the SPLA nor that the
process of granting terrorism-related exemptions involves sensitive national security
questions and time-intensive interagency consultations. Rather, Rambang argues that if
defendants truly viewed him as a national security concern, they could have initiated
removal proceedings against him or denied his asylum application in the first instance. It
is, of course, not up to this Court to determine whether Rambang – or any other applicant
for adjustment of status – poses a threat to national security. Indeed, the purpose of the
limited scope of judicial review under the APA is to “protect agencies from undue
judicial interference with their lawful discretion, and to avoid judicial entanglement in . . .
disagreements which courts lack both expertise and information to resolve.” Norton, 542
U.S. at 66.

Moreover, that none of the Secretary’s many discretionary grants of

terrorism-related exemptions to inadmissibility has benefitted Rambang says nothing
about the reasonableness of the procedure underlying the Secretary’s exercise of that
discretion.

As in Al-Rifahe, there appears to be “no reason to disbelieve the

government’s assertions that the exemption process is a lengthy one requiring ‘significant
agency consultation.’” Al-Rifahe, 776 F. Supp. 2d at 936. Though both time- and laborintensive, this procedure is governed by a rule of reason, and the second factor therefore
favors defendants.
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Factors three and five are related, and the Court will consider them together.
These factors concern the nature and extent of the interests affected by the delay,
particularly human health and welfare. TRAC, 750 F.2d at 80. Defendants point to their
interest in complying fully with the CAA and USCIS policy. This interest must be
weighed against the effect of further delay on Rambang’s interests, particularly his health
and welfare. Rambang argues that he “experiences insurmountable stress and hardship”
because of the delay (Pl.’s Opp’n at 25), and alleges that he is “unable to move forward
in life,” and “deprive[d] of his peace of mind” and “important benefits, rights, and
protections to which he would be entitled as a [LPR].” (Compl. ¶ 10). While these
allegations of harm are sufficient to state a claim for relief, Rambang offers no evidence
demonstrating the extent of this emotional harm or how this harm overwhelms the
government’s interest.6 He has submitted, for example, no declarations in opposition to
the government’s summary judgment motion.
The Court does not seek to minimize these inconveniences. Rambang, however,
cannot simply rest on allegations in the pleadings to defeat a summary judgment motion.

6

Rambang does not even allege, for example, that his abilities to work and travel freely
have been significantly impacted by the delay associated with processing his application; indeed,
while his application has been pending, Rambang has been eligible to apply for documentation
allowing him to travel and accept employment. See Islam, 2011 WL 2066661, at *7-8
(observing that plaintiff’s ability to work and travel had been impacted by delay in processing
his application, though ultimately concluding that these factors did not strongly favor either
party). At oral argument, Rambang’s counsel pointed out that Rambang must pay an additional
fee to obtain travel documents to visit his son abroad, and that as a non-LPR, Rambang is unable
to petition to bring his son to the United States as an asylee. These concerns do not appear in the
complaint, and in any event are insufficient – standing alone – to overwhelm the government’s
interest.

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See Fed. R. Civ. P. 56(e)(2). Moreover, Rambang admits to being a member of SPLA.
That fact distinguishes this case from cases involving failure to process name checks,
“where courts have concluded that two to four year delays are unreasonable.” Islam,
2011 WL 2066661, at *8 (collecting authorities). As noted above, the exemption process
in terrorism-related inadmissibility cases is a complex, sensitive, and potentially lengthy
one. See Al-Rifahe, 776 F. Supp. 2d at 936. Rambang’s evidence – had he submitted any
– would therefore have needed to demonstrate substantial harm outweighing the
government’s interest in completing this delicate process.

In short, the harm that

Rambang alleges and argues does not outweigh defendants’ weighty interest in carefully
completing

the

time-consuming

exemption

process

prescribed

in

8

U.S.C.

§ 1182(d)(3)(B)(i). To summarize, in view of the comparatively short period that has
elapsed since USCIS re-opened Rambang’s application (approximately four years,
compared, for example, to the thirteen-year delay this Court found unreasonable in AlRifahe), the complex process involved in granting such an exemption, and the non-trivial,
but hardly grievous prejudice that Rambang alleges to stem from this delay, the Court
finds that the third and fifth factors favor defendants.
The fourth TRAC factor involves considering the effect of expediting the delayed
action on other agency activities.

TRAC, 750 F.2d at 80.

Defendants argue that

compelling adjudication of Rambang’s application would truncate any consideration of a
potentially beneficial exemption.

Rambang counters that USCIS has impermissibly

consigned his application to languish in limbo.

Defendants offer no evidence or

argument about why they could not immediately adjudicate Rambang’s application, nor
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do they provide an estimate of how much longer it may take to make a decision.
Defendants simply argue, in effect, that Rambang cannot rush the process. It is logical to
infer that requiring USCIS to adjudicate Rambang’s application would require the agency
to divert resources from elsewhere. But absent a more fully developed record on the
matter, the Court finds that this factor does not strongly favor either party.
Finally, the sixth factor is inapplicable because Rambang alleges no impropriety
lurking behind the agency lassitude. It is not in dispute that USCIS reopened Rambang’s
application after its initial denial based on policy guidance issued following Congress’
passage of the CAA, and that the application remains on hold because it might benefit
from a future exercise of the Secretary’s discretionary exemption authority. Kahn, 2009
WL 941574, at *9 (finding a March 2008 reopening and hold of an adjustment
application to be a good faith effort).
In sum, nearly all the TRAC factors favor defendants. While the Court urges
defendants to adjudicate Rambang’s application with due haste in recognition of the notinsubstantial toll that continued delay no doubt has on Rambang’s state of mind and
ability to move on with his life, it finds that the approximately four-year delay in issuing
a final decision is not unreasonable under the circumstances. It bears emphasis that such
a time may one day arrive. See, e.g., Al-Rifahe, 76 F. Supp. 2d at 937-38. At present,
however, defendants’ motion for summary judgment will be granted.

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ORDER
Based on the foregoing, and the records, files, and proceedings herein, IT IS
HEREBY ORDERED that defendants’ Combined Motion to Dismiss and Motion for
Summary Judgment [Docket No. 4] is GRANTED in part and DENIED in part, as
follows:
1.

The motion for summary judgment is GRANTED.

2.

The motion is DENIED in all other respects.

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: June 27, 2012
at Minneapolis, Minnesota.

___s/

_____
JOHN R. TUNHEIM
United States District Judge

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