Senbeta v. Mayorkas et al

Filing 15

MEMORANDUM OPINION AND ORDER. Defendants' Motion to Dismiss and for Summary Judgment (Doc. No. 8 ) is GRANTED IN PART and DENIED IN PART as follows: 1. The motion for summary judgment is GRANTED. 2. The motion to dismiss is DENIED.(Written Opinion). Signed by Judge Donovan W. Frank on 6/14/2013. (BJS)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Lulie Senbeta,

Civil No. 12-1793 (DWF/FLN)
Plaintiff,

v.

MEMORANDUM
OPINION AND ORDER

Alejandro Mayorkas, Director,
U.S. Citizenship and Immigration
Services; and Janet Napolitano, Secretary,
Department of Homeland Security,
Defendants.
_______________________________________________________________________
Marc Prokosch, Esq., Karam & Associates, counsel for Plaintiff.
Lonnie F. Bryan, Assistant United States Attorney, United States Attorney’s Office; and
Aaron S. Goldsmith and Durwood H. Reidel, U.S. Department of Justice, Office of
Immigration Litigation, counsel for Defendants.
_______________________________________________________________________

INTRODUCTION
This matter is before the Court on a Motion to Dismiss, or, in the Alternative,
Motion for Summary Judgment brought by Defendants Alejandro Mayorkas, Director,
U.S. Citizenship and Immigration Services (“USCIS”), and Janet Napolitano, Secretary,
Department of Homeland Security (“Secretary”) (Doc. No. 8). For the reasons set forth
below, the Court grants Defendants’ motion for summary judgment, but denies the
motion in all other respects.

BACKGROUND
Plaintiff Lulie Senbeta (“Plaintiff”), a citizen of Ethiopia, is an asylee and
applicant to adjust her status to that of a Lawful Permanent Resident (“LPR”). (Doc.
No. 1, Compl. ¶¶ 4, 7; Doc. No. 11, Ex. 1 (“Canaan Decl.”) ¶ 3.) Plaintiff was admitted
to the United States as a nonimmigrant student on February 24, 1994. (Canaan Decl.
¶ 3.) Plaintiff was granted asylum status on March 22, 2000. (Id. ¶ 4.) Plaintiff’s asylum
claim and adjustment of status application included information indicating that she was
affiliated with the Oromo Liberation Front (“OLF”) in Ethiopia. (Id. ¶ 13.) 1 In
particular, in her asylum application, Plaintiff indicated that she supported the OLF by
contributing money, fundraising, and participating in meetings. (Id.) Plaintiff also
indicated that she was actively involved with the Oromo Youth Organization from 1991
through the first half of 1992. (Id.)
Plaintiff filed an application to adjust her status from asylee to lawful permanent
resident on August 20, 2001 (the “Application”). (Id. ¶ 5.) The Federal Bureau of
Investigation (“FBI”) completed Plaintiff’s name check on January 14, 2003. (Id. ¶ 11.)
The USCIS denied Plaintiff’s application on February 18, 2008, due to her being
inadmissible on terrorist-related grounds. (Id. ¶ 21.)

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USCIS has determined that the OLF falls within the definition of a Tier III
undesignated terrorist organization, as defined in the Immigration and Nationality Act.
See 8 U.S.C. § 1182(a)(3)(B)(vi)(III). (Canaan Decl. ¶ 15.)

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In December 2007, the Consolidated Appropriations Act (“CAA”) amended the
Secretary’s authority to exempt certain terrorist-related inadmissibility grounds,
specifically by expanding the Secretary’s discretionary authority to exempt individuals
and groups from certain terrorist-related inadmissibility grounds relating to Tier III
organizations. (Canaan Decl. ¶ 18.) Subsequently, in a March 26, 2008 memorandum,
USCIS issued guidance on the adjudication of cases involving terrorism-related
inadmissibility, including the instruction that adjudicators withhold adjudication of cases
where the applicant could benefit from a future exercise of the Secretary’s discretionary
exemption authority under the CAA. (Id. ¶ 20.)
On April 29, 2008, after its initial denial, Plaintiff’s Application was reopened and
placed on hold in accordance with the March 26, 2008 policy memorandum. (Id. ¶¶ 12,
21.) 2 On July 24, 2012, Plaintiff filed the instant action, seeking to compel USCIS to

adjudicate her Application for lawful permanent residency. In particular, Plaintiff alleges
that Defendants have violated the Administrative Procedure Act (“APA”) by failing to
timely adjudicate her Application. (Compl. ¶ 15.) On October 18, 2012, USCIS issued a
request for Evidence, seeking further information regarding her affiliation with the OLF.
(Canaan Decl. ¶ 28.) Plaintiff responded on October 31, 2012. (Id.)
Defendants now move to dismiss the present case for lack of subject matter
jurisdiction and for failure to state a claim, or in the alternative, to enter judgment in
2

Several exemptions have been issued to date, but none have benefitted Plaintiff in
relation to her activities on behalf of the OLF. (Canaan Decl. ¶ 23.) To date, USCIS has
not determined whether the OLF meets the qualifications of the exemption. (Id. ¶ 29.)

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favor of Defendants and dismiss the case because existing case law and legal standards
establish that the delay in processing the case is not, as a matter of law, unreasonable.
DISCUSSION
I.

Motion to Dismiss
A.

Subject Matter Jurisdiction

On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1)
challenging the Court’s subject matter jurisdiction, the plaintiff has the 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).
Defendants argue that Plaintiff’s Complaint should be dismissed because 8 U.S.C.
§ 1252(a)(2)(B)(ii), which relates to judicial review of discretionary decisions, deprives
the Court of subject matter jurisdiction. That section provides:
Notwithstanding any other provision of law . . . no court shall have
jurisdiction to review . . . 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) [asylum] of this title.
8 U.S.C. § 1252(a)(2)(B)(ii).
The Secretary or Attorney General may, in their discretion, adjust to permanent
residence status certain aliens admitted as asylees. 8 U.S.C. § 1159(b). The statute does

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not mention a particular time frame within which USCIS must adjudicate applications for
adjustment of status. Defendants assert that USCIS’s decision to put Plaintiff’s
Application on hold pending a potential exemption is a discretionary decision, and
therefore, outside this Court’s jurisdiction to review. Plaintiff, however, argues that
§ 1252(a)(2)(B)(ii) does not preclude the Court’s exercise of subject matter jurisdiction
over Plaintiff’s claim because Plaintiff is not seeking review of a decision to apply or not
apply an exemption, but instead she is seeking review of the decision to place her
Application on hold. Specifically, Plaintiff seeks to compel Defendants to act and issue a
decision regarding her Application.
There is a division among district courts on the question of whether
§ 1252(a)(2)(B)(ii) strips courts of jurisdiction to consider claims that the government has
unreasonably delayed the disposition of an adjustment application. See Al–Rifahe v.
Mayorkas, 776 F. Supp. 2d 927, 932, 938 (D. Minn. 2011) (explaining that district courts
across the country are divided, but noting that the “overwhelming majority” of district
courts have concluded that § 1252(a)(2)(b)(ii) does not bar judicial review of claims
alleging unreasonable delay in the disposition of applications of asylees associated with
Tier III terrorist organizations). The court in Al-Rifahe addressed the division and
concluded that § 1252(a)(2)(B)(ii) does not “provide[ ] blanket cover for USCIS’[s]
decision to withhold adjudication of [a 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
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to exercise his discretion.”). But see Namarra v. Mayorkas, Civ. No. 12-1792, 2013 WL
619777, at *6 (D. Minn. Feb. 20, 2013) (“the statutory grant of discretion to promulgate
regulations governing how to make adjustment decisions necessarily carries with it the
discretion to determine when those adjustment decisions will be made”) (emphasis in
original).
The Court concludes that § 1252(a)(2)(b)(ii) does not strip the Court of
jurisdiction to consider Plaintiff’s claim that the government has unreasonably delayed in
the disposition of her Application to adjust her status to permanent resident. While the
ultimate authority to grant or deny adjustment of status is unquestionably discretionary,
the Court agrees with the reasoning and conclusion in Al-Rifahe— in particular that there
is a non-discretionary duty to act on and process an application to adjust status to
permanent resident. See Al–Rifahe, 776 F. Supp. 2d at 933 (citations omitted).
There being no jurisdictional bar, Plaintiff must put forth an affirmative basis for
subject matter jurisdiction. The APA does not provide an independent basis for subject
matter jurisdiction, however, “[i]t is black-letter law that federal courts have jurisdiction
under [28 U.S.C.] § 1331 over suits against agencies seeking to enforce provisions of the
APA.” Id. at 934 (quoting Ali v. Frazier, 575 F. Supp. 2d 1084, 1088-89 (D. Minn. 2008)
(concluding that § 1331 provides jurisdictional basis for APA claim of unreasonable
delay in adjudicating naturalization application)). The APA further provides that federal
courts “shall . . . compel agency action unlawfully withheld or unreasonably
delayed . . . . ” Al-Rifahe, 776 F. Supp. 2d at 934 (quoting 5 U.S.C. § 706(1)). However,
“a claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to
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take a discrete agency action that it is required to take.” Norton v. S. Utah Wilderness
Alliance, 542 U.S. 55, 64 (2004) (“SUWA”) (emphasis in original). 3 Here, the Court
concludes that Defendants’ obligation to act on Plaintiff’s Application is a discrete
agency action that Defendants are required to take, and that once an application for an
adjustment of status is properly before USCIS, the agency has a non-discretionary duty to
act on the application. See, e.g., Al-Rifahe, 776 F. Supp. 2d at 935 (citing additional
cases); Al Sawad v. Frazier, Civ. No. 07-1721, 2007 WL 2973833, at *3 (D. Minn.
Oct. 9, 2007) (joining a “growing number of district courts in concluding that USCIS has
a duty to adjudicate adjustment of status applications once they have been submitted and
that the APA requires the applications to be adjudicated in a reasonable time”).
For the above reasons, the Court concludes that it has jurisdiction to hear
Plaintiff’s case.
B.

Failure to State a Claim

Defendants also argue that Plaintiff’s Complaint must be dismissed under
Rule 12(b)(6) for failure to state a claim. In deciding a motion to dismiss pursuant to
Rule 12(b)(6), a court assumes all facts in the complaint to be true and construes all
reasonable inferences from those facts in the light most favorable to the complainant.
Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986). In doing so, however, a court need

3

The APA exempts from judicial oversight claims based on “statutes preclud[ing]
judicial review” or “agency action . . . committed to agency discretion by law.” 5 U.S.C.
§ 701(a)(1) and (2).

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not accept as true wholly conclusory allegations, Hanten v. Sch. Dist. of Riverview
Gardens, 183 F.3d 799, 805 (8th Cir. 1999), or legal conclusions drawn by the pleader
from the facts alleged. Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990).
A court may consider the complaint, matters of public record, orders, materials embraced
by the complaint, and exhibits attached to the complaint in deciding a motion to dismiss
under Rule 12(b)(6). Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir.
1999).
To survive a motion to dismiss, a complaint must contain “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
545 (2007). Although a complaint need not contain “detailed factual allegations,” it must
contain facts with enough specificity “to raise a right to relief above the speculative
level.” Id. at 555. As the United States Supreme Court recently reiterated, “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements,”
will not pass muster under Twombly. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555). In sum, this standard “calls for enough fact[s] to raise a
reasonable expectation that discovery will reveal evidence of [the claim].” Twombly, 550
U.S. at 556.
To state a claim for unreasonable delay under the APA, the delay must result in
some harm to the plaintiff. See SUWA, 542 U.S. at 64. In her Complaint, Plaintiff
alleges that she “has been unable to move forward with her life; has been deprived of her
peace of mind; and deprived of important benefits, rights, and protections to which she
would be entitled as a Lawful Permanent Resident of the United States.” (Compl. ¶ 10.)
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Defendants, however, assert that Plaintiff does not allege any prejudice to her by the hold
on her Application, because, but for the hold, her Application would be denied.
While Plaintiff’s allegations of harm are somewhat general, the Court must, on a
motion to dismiss, construe all facts in the light most favorable to Plaintiff. The Court
finds that Plaintiff has sufficiently alleged the required harm stemming from the delay.
See, e.g, Rambang v. Mayorkas, Civ. No. 11-3454, 2012 WL 2449927, at *5 (D. Minn.
June 27, 2012). Therefore, Defendants’ motion to dismiss for failure to state a claim is
denied.
II.

Motion for Summary Judgment
Defendants argue, in the alternative, that they are entitled to summary judgment

because there is no dispute of material fact in this case and that the time spent processing
Plaintiff’s adjustment case is reasonable as a matter of law. Plaintiff argues that
summary judgment in favor of Defendants is not warranted because there is a genuine
issue of material fact regarding the relevant time period for purposes of calculating a
delay and because the delay in adjudicating her Application is unreasonable as a matter of
law.
Summary judgment is proper if there are no disputed issues of material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
Court must view the evidence and the inferences that may be reasonably drawn from the
evidence in the light most favorable to the nonmoving party. Enter. Bank v. Magna Bank
of Mo., 92 F.3d 743, 747 (8th Cir. 1996). However, as the Supreme Court has stated,
“[s]ummary judgment procedure is properly regarded not as a disfavored procedural
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shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed
‘to secure the just, speedy, and inexpensive determination of every action.’” Celotex
Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).
The moving party bears the burden of showing that there is no genuine issue of
material fact and that it is entitled to judgment as a matter of law. Enter. Bank,
92 F.3d at 747. The nonmoving party must demonstrate the existence of specific facts in
the record that create a genuine issue for trial. Krenik v. County of Le Sueur,
47 F.3d 953, 957 (8th Cir. 1995). A party opposing a properly supported motion for
summary judgment “may not rest upon mere allegations or denials of his pleading, but
must set forth specific facts showing that there is a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
The Court employs a six-factor test to determine whether a delay is unreasonable
under the APA:
(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.
Telecomms. Research and Action Ctr. v. FCC (“TRAC”), 750 F.2d 70, 80 (D.C. Cir.
1984) (internal citations and quotation marks omitted). The Court evaluates the TRAC
factors below.
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The first and second factors relate to the rule of reason governing the agency’s
decision-making process. Id. There is no congressionally mandated timetable at issue,
and therefore the APA’s “general reasonableness” standard applies to the second factor.
See 8 U.S.C. § 1159(b), 1182(d)(3)(B)(i); 5 U.S.C. §§ 555(b), 706(1). See also, e.g.,
Irshad v. Napolitano, Civ. No. 12-173, 2012 WL 4593391, at *11 (D. Neb. Oct. 2, 2012);
Rambang, 2012 WL 2449927, at *6.
There is no dispute that Plaintiff filed her Application on August 20, 2001, and
that the USCIS denied the Application on February 18, 2008. Plaintiff argues that the
relevant time period is the nearly 11 years that passed between the time she filed her
Application and the time she initiated this lawsuit in July 2012. Defendants submit that
the relevant time period for calculating the reasonableness of the delay is from
April 29, 2008, the date on which Plaintiff’s Application was reopened and placed on
hold, until the filing of the lawsuit in July 2012. The Court concludes that the relevant
time period for calculating any delay is the time period between the re-opening of the
Application and the filing of this lawsuit—a period of just over four years. See, e.g., Al
Sawad v. Mayorkas, Civ. No. 11-2923, 2012 WL 3238258, at *1-2, 5 (D. Minn. Aug. 7,
2012) (delay runs from the date application is reopened); Rambang, 2012 WL 2449927,
at *7-8 (same).
Defendants further submit that the four-year delay is not unreasonable as a matter
of law. In particular, Defendants contend that Plaintiff’s Application is on hold because
Congress enacted the CAA in 2008, and in response, USCIS issued a memorandum
directing its adjudicators to place on hold certain adjustment cases that could potentially
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benefit from a future exercise by the Secretary of her exemption authority. Defendants
also describe the exemption procedure as being complex and potentially lengthy, and one
that implicates national security. Finally, Defendants point out that it is taking active
steps toward the adjudication of Plaintiff’s Application, namely its October 2012 request
for evidence and consideration of the same.
The Court concludes that the time spent processing Plaintiff’s Application, thus
far, is not unreasonable as a matter of law. Evidence in the record indicates that: the
Secretary and other government officials have been exercising their discretionary
authority and continue to consider additional exercises of USCIS’s exemption authority;
the process of making these determinations requires country by country assessments and
analysis of the Tier III organizations at issue; and should it be determined that the OLF
meets the qualifications for an exemption and Plaintiff is eligible, Plaintiff’s Application
will be removed from hold and USCIS will proceed with adjudication. (Canaan Decl.
¶¶ 27-29.) In addition, courts faced with similar facts have found similar delays to be
reasonable. See Debba v. Heinauer, Civ. No 09-1540, 2010 WL 521002, at *3 (D. Minn.
Feb. 16, 2010) (eight-year delay not unreasonable); Rambang, 2012 WL 2449927, at *6
(four-year delay not unreasonable).
Factors three and five are related and considered together. These factors concern
the nature and extent of the interests affected by the delay, particularly as the effects of
the delay involve Plaintiff’s health and welfare. To this end, Plaintiff submits that she
has experienced substantial prejudice resulting from Defendants’ failure to adjudicate her
Application. Specifically, Plaintiff claims that she “has been unable to move forward
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with her life; has been deprived of her peace of mind; and deprived of important benefits,
rights, and protections to which she would be entitled as a Lawful Permanent Resident of
the United States.” (Compl. ¶ 10.) Defendants assert that they have an interest in
following the CAA and related policy. Defendants further assert that the hold actually
inures to Plaintiff’s benefit because Plaintiff would likely be denied a status adjustment
without an exemption.
Defendants’ interests must be weighed against the effect of further delay on
Plaintiff’s interests, particularly her health and welfare. While the Court acknowledges
that Plaintiff has alleged hardship caused by the delay, such as the inability to move
forward and the deprivation of her peace of mind, the Court concludes that those interests
are outweighed by Defendants’ interests in carrying out its congressional mandate and in
carefully completing the exemption process in this terrorism-related inadmissibility case.
Plaintiff admits to having been a member of the OLF, a group that warrants
categorization as a terrorist organization under 8 U.S.C. §1182(a)(3)(B)(vi)(III). As
explained above, the exemption process in terrorism-related cases is complex and
potentially time-consuming. The harm Plaintiff argues she has suffered does not
outweigh Defendants’ interests in national security and in completing the exemption
process in terrorism-related cases.
The fourth factor involves considering the effect of expediting the delayed action
on other agency activities. Plaintiff asserts that USCIS does not possess unfettered
discretion to relegate her Application to a state of limbo. Defendants, however, argue
that the insistence upon expediting the adjudication of her Application directly interferes
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with the USCIS’s discretion. As discussed above, Plaintiff’s Application implicates
issues regarding terrorism-related inadmissibility because of her admitted involvement
with the OLF. Defendants have persuaded the Court that expediting the delay would
intrude into agency discretion. The Court finds that this factor favors Defendants.
There is no dispute that Plaintiff’s Application is on hold because, after the
passage of the CAA, Plaintiff might benefit from a future exercise of the Secretary’s
discretionary exemption authority. Even so, Plaintiff asserts that the delay in the
adjudication of her Application arguably constitutes impropriety. Here, there is no
evidence that Defendants have acted with impropriety. Thus, the sixth factor factor does
not weigh in Plaintiff’s favor.
Considering all of the above, and in light of the particular circumstances of this
case, the Court concludes that a four-year delay in issuing a final decision on Plaintiff’s
Application is not unreasonable. While acknowledging the real effects that the delay has
had on Plaintiff, any harm to Plaintiff is outweighed by Defendants’ substantial interests.
Despite its ruling today, the Court notes that, at some point, a continued delay by
Defendants will become unreasonable. See, e.g., Al-Rifahe, 766 F. Supp. 2d at 937-38
(government not entitled to summary judgment where plaintiff’s application pending for
thirteen-years and a government memo lifted hold on plaintiff’s application). Thus, the
Court strongly suggests that Defendants take affirmative and meaningful steps to move
Plaintiff’s Application forward.

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ORDER
Based upon the foregoing, IT IS HEREBY ORDERED that Defendants’ Motion
to Dismiss and for Summary Judgment (Doc. No. [8]) is GRANTED IN PART and
DENIED IN PART as follows:
1.

The motion for summary judgment is GRANTED.

2.

The motion to dismiss is DENIED.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: June 14, 2013

s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge

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