Arapi et al v. U.S. Citizenship & Immigration Services et al

Filing 28

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants Motion to Dismiss the First Amended Complaint [ 22 ] is GRANTED. A separate judgment of dismissal will accompany this Memorandum and Order. Signed by District Judge John A. Ross on 8/24/17. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DISTRICT

WAFAA ALWAN,
Plaintiff,
v.
U.S. CITIZENSHIP & IMMIGRATION
SERVICES, et al.,
Defendants.

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No. 4:16-CV-00692 JAR

MEMORANDUM AND ORDER
This matter is before the Court on a motion to dismiss filed by Defendants U.S.
Citizenship Immigration Services (“USCIS”); Jeh Johnson, Secretary of Homeland Security;
Leon Rodriguez, Director of USCIS; Matthew D. Emrich, Associate Director, Fraud Detection
and National Security Directorate of USCIS; Daniel Renaud, Associate Director, Field
Operations Directorate of USCIS; David Douglas, District Director of the Kansas City District
Office, USCIS; and Chester Moyer, Director of the St. Louis Field Office of USCIS (Doc. No.
22). The motion is fully briefed and ready for disposition. For the following reasons, the motion
will be granted.
Background
On May 18, 2016, Plaintiffs Eriola Arapi, Samina Syed, Wafaa Alwan, Saqib Sarwar,
Mohammad A. Al Muttan, Syed Asghar Ali, Ibrahim Mohamed Zidan, Hanaa B. Kayem,
Abubakar Ahmed Abulfathi, Mirzeta Tursunovic, Amina Tursunovic, Syed Tariq Ali, 1 and

1

On June 21, 2016, before amending their complaint, Plaintiffs voluntarily dismissed Syed Tariq Ali
(Doc. No. 2).

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Mohammad S. Jauda filed the initial complaint in this matter alleging their naturalization
applications were being unlawfully delayed under a policy known as the Controlled Application
Review and Resolution Program (“CARRP”). Plaintiffs claimed that CARRP was designed by
Defendants to delay the immigration cases of Muslims and develop pretextual reasons for
denying their applications. Plaintiffs requested the Court enjoin USCIS from applying CARRP to
their immigration applications, declare that CARRP is illegal, and adjudicate their applications.
(Doc. No. 1). On June 21, 2016, Plaintiffs filed an Amended Complaint for Declaratory and
Injunctive Relief (“AC”), joining eight additional Plaintiffs, for a total of twenty Plaintiffs (Doc.
No. 3).
On July 12, 2016, this Court granted Defendants’ unopposed motion seeking an
extension of their initial response date from July 22, 2016 to September 5, 2016 (Doc. No. 10).
On August 29, 2016, after Plaintiffs filed a “Rule 41(a) Notice of Voluntary Dismissal of Claims
by Certain Plaintiffs” (Doc. No. 12), the Court dismissed the following ten Plaintiffs: Eriola
Arapi, Saqib Sarwar, Syed Asghar Ali, Hanaa B. Kayem, Mohammad S. Jauda, Musrath Jahan
Baig, Mahmood Ali Mansur, Sary Ibrahim Doumbia, Nermin Busevac, and Abdelsamed
Alamin. 2 (Doc. No. 13).
On September 1, 2016, this Court granted Defendants’ unopposed motion seeking
another extension of their response date, from September 5, 2016 to October 20, 2016 (Doc. No.
14). On October 5, 2016, after Plaintiffs filed a “Second Rule 41(a) Notice of Voluntary
Dismissal of Claims by Certain Plaintiffs” (Doc. No. 16), this Court dismissed the following four

2

As indicated in Plaintiffs’ “Notice,” USCIS approved each of these ten former Plaintiffs’ naturalization
applications (Doc. No. 12).

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Plaintiffs: Samina Syed, Abdolreza Osouli, Amina Tursunovic, and Sharafat Mohammed. 3 (Doc.
No. 17).
On October 13, 2016, the Court granted Defendants’ unopposed motion to extend their
response date from October 20, 2016 to December 19, 2016 (Doc. No. 19). On December 12,
2016, after Plaintiffs filed a “Third Rule 41(a) Notice of Voluntary Dismissal of Claims by
Certain Plaintiffs” (Doc. No. 20), the Court dismissed the following five Plaintiffs: Ibrahim
Mohamed Zidan, Abubakar Ahmed Abulfathi, Mirzeta Tursunovic, Mohammad A. Al Muttan,
and Adnan Sawlan. 4 (Doc. No. 21).
Wafaa Alwan, a forty-nine year old Iraqi national and lawful permanent resident of the
United States, is the sole remaining Plaintiff in this matter. Alwan applied for naturalization on
December 17, 2014, and appeared for an interview on August 31, 2015 (AC at ¶ 20). She alleges
that even though she satisfies all statutory criteria for naturalization, USCIS refused to adjudicate
her application, instead applying more stringent rules under CARRP (AC at ¶ 3). According to
Alwan, her application was delayed under CARRP, which prohibits USCIS field officers from
approving an application with a potential “national security concern,” instead directing them to
deny the application or delay adjudication—often indefinitely—in violation of the Immigration
and Nationality Act (“INA”), 8 U.S.C. § 101 et seq. (AC at ¶¶ 8-9, 13, 48). Alwan requests the
Court determine that she meets the requirements of naturalization and naturalize her without
further delay (AC at ¶¶ 137-38).
On August 25, 2016, after the filing of this complaint, the Illinois State Police arrested

3

As indicated in Plaintiffs’ second “Notice,” USCIS approved each of these four former Plaintiffs’
naturalization applications (Doc. No. 16).

4

As indicated in Plaintiffs’ third “Notice,” USCIS approved three and denied three naturalization
applications for these six former Plaintiffs (Doc. No. 20).

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Alwan for the offense of Unlawful Transportation of Contraband Cigarettes, in violation of 35
ILCS 130/9C, a Class 4 Felony. USCIS denied Alwan’s application for naturalization on October
20, 2016 based on unlawful acts committed during the good moral character period (Doc. No.
22-1). On November 17, 2016, Alwan filed an administrative appeal of the denial of her
application (Doc. No. 22-2), which appears to be pending.
Legal framework for naturalization
To become a United States citizen through naturalization, an applicant must satisfy
certain eligibility criteria under the INA. Applicants must prove that they are “at least 18 years of
age,” 8 C.F.R. § 316.2(a)(1); have “resided continuously, after being lawfully admitted” to the
United States “for at least five years”; and have been “physically present” in the United States
for “at least half of that time.” 8 U.S.C. § 1427(a)(1). Applicants must also demonstrate “good
moral character” for the five years preceding the date of application, “attach[ment] to the
principles of the Constitution of the United States, and favorabl[e] dispos[ition] toward the good
order and happiness of the United States …” 8 C.F.R. § 316.2(a)(7).
Once an individual submits an application, USCIS conducts a background investigation,
see 8 U.S.C. § 1446(a); 8 C.F.R. § 335.1, which includes a full FBI criminal background check,
see 8 C.F.R. § 335.2. After completing the background investigation, USCIS schedules a
naturalization examination at which the applicant meets with a USCIS examiner for an interview.
In order to avoid inordinate processing delays and backlogs, Congress has stated “that the
processing of an immigration benefit application,” which includes naturalization, “should be
completed not later than 180 days after the initial filing of the application.” 8 U.S.C. § 1571(b).
USCIS must either grant or deny a naturalization application within 120 days of the date of the
examination. 8 C.F.R. § 335.3. If an applicant satisfies the statutory requirements for

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naturalization, USCIS “shall grant the application.” 8 C.F.R. § 335.3(a).
If USCIS fails to adjudicate a naturalization application within 120 days after
interviewing a naturalization applicant, the applicant may apply to the district court for a hearing
on the naturalization application, in which case the court “may either determine the matter or
remand the matter, with appropriate instructions, to [USCIS] to determine the matter.” 8 U.S.C. §
1447(b). If USCIS denies a naturalization application, the applicant may administratively appeal
the denial by requesting a hearing before an immigration officer by submitting a Form N-336,
Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the
INA). 8 U.S.C. § 1447(a); 8 C.F.R. § 336.2(b). If, after administratively appealing the denial,
USCIS sustains a naturalization denial, an applicant may seek de novo review of naturalization
eligibility with the district court. See 8 U.S.C. §§ 1447(a), 1421(c).
Alwan alleges that in April 2008, USCIS created CARRP, an agency-wide policy for
identifying, processing, and adjudicating immigration applications that raise “national security
concerns.” (AC at ¶ 63). She claims that a “national security concern” arises when an individual
or organization has been determined to have an “articulable link … to prior, current, or planned
involvement in, or association with, an activity, individual or organization” that “has engaged in
terrorist activity” or who is a member of a “terrorist organization” under the INA. (AC at ¶ 69).
If a USCIS officer identifies an application posing a “national security concern,” the
application is removed from the agency’s routine adjudication track and thereafter subjected to
CARRP’s rules and procedures that guide officers to deny or delay adjudication of those
applications. (AC at ¶ 68, 92). One such procedure, “deconfliction,” requires USCIS to
coordinate with the law enforcement agency, often the Federal Bureau of Investigations, that
possesses information giving rise to the supposed national security concern. (AC at ¶¶ 93-95).

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Alwan alleges USCIS often makes decisions to deny immigration applications because the FBI
requests or recommends the denial, not because the person was statutorily ineligible for the
benefit. (AC at ¶ 96). This allows law enforcement and intelligence agencies to directly affect the
adjudication of a requested immigration benefit. (AC at ¶ 95).
In addition to “deconfliction,” once officers identify an applicant as a “national security
concern,” CARRP directs officers to perform an “eligibility assessment” to determine whether
the applicant is eligible for the benefit sought. (AC at ¶ 97). According to Alwan, CARRP
instructs officers to look for any possible reason to deny an application so that “valuable time
and resources are not unnecessarily expended” on further investigation. (AC at ¶ 98). This results
in officers inventing false or pretextual reasons to deny the applications. (Id.) If an officer cannot
find a reason to deny the application, Alwan claims that CARRP instructs officers to “internally
vet” the “national security concern” using information available through the Department of
Homeland Security’s systems and databases, open source information, review of the applicant’s
file, and interviews or site visits. (AC at ¶ 99). After conducting the eligibility assessment and
internal vetting, USCIS officers are again instructed to conduct “deconfliction” to determine the
position of any interested law enforcement agency. (AC at ¶ 100). If the “national security
concern” remains and the officer cannot find a basis to deny the benefit, Alwan claims the
application proceeds to “external vetting,” during which time USCIS officers and law
enforcement agents confirm the existence of the “national security concern.” (AC at ¶¶ 101-02).
CARRP authorizes officers to hold applications in abeyance for periods of 180 days to enable
law enforcement agents and USCIS officers to investigate the “national security concern.” (AC
at ¶ 103). The Field Office Director may extend the abeyance periods so long as the investigation
remains open, and Alwan alleges that CARRP provides no outer limit on how long USCIS may

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hold a case in abeyance, despite the statutory requirement under INA that USCIS adjudicate a
naturalization application within 120 days of examination. (AC at ¶¶ 103-04).
In essence, Alwan’s complaint takes issue with USCIS’s delay in adjudication of
applications when it cannot find a reason to deny the application by subjecting that application to
CARRP. (AC at ¶ 108). Alwan also claims that when an applicant files a mandamus action with
the district court to compel USCIS to adjudicate a pending application, that filing often has the
effect of forcing USCIS to deny the statutorily-eligible application because CARRP prevents
agency field officers from granting an application involving a “national security concern.” (Id.).
Alwan claims CARRP effectively creates two substantive regimes for immigration application
and processing: one for those applications subject to CARRP and one for all other applications.
(AC at ¶ 109). She claims CARRP results in extraordinary processing and adjudication delays,
often lasting many years, and baseless denials of statutorily-eligible immigration applications.
(AC at ¶ 111).
Discussion
Defendants argue that Alwan’s complaint should be dismissed for lack of subject matter
jurisdiction because USCIS has adjudicated her naturalization application, rendering the relief
she seeks moot. Alternatively, Defendants argue that to the extent Alwan’s complaint is
construed as a challenge to her naturalization denial, it should be dismissed for lack of ripeness
because she has filed an administrative appeal of her denial, which remains pending with USCIS.
See 8 C.F.R. § 316.10(b)(3)(iii); see also 8 U.S.C. §§ 1101(f), 1427(a)(3). Alwan does not
address Defendants’ arguments for dismissal on mootness and ripeness grounds. Instead, she
asserts that once a naturalization applicant files a complaint with a district court alleging
unreasonable adjudication delay, as she has done here, the plain language of 8 U.S.C. § 1447

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confers exclusive jurisdiction on the district court to decide the matter. Alwan argues that USCIS
was precluded from taking any action on her pending naturalization application and that the
purported denial by USCIS is null and should be disregarded by this Court. Defendants note and
the Court agrees that Alwan’s argument is belied by the fact that her counsel did not challenge
USCIS’s jurisdiction to adjudicate the naturalization applications of the nineteen former
Plaintiffs while the amended complaint was pending before this Court (Doc. No. 26 at 3-4).
Furthermore, this Court recently rejected an identical argument in Haroun v. United
States Department of Homeland Security, No. 4:16CV01511 JAR, 2017 WL 3168530 (E.D. Mo.
July 26, 2017), ruling that § 1447(b) grants concurrent jurisdiction over a naturalization
application to the district court once a plaintiff files a complaint. Id. at *5-6 (“[T]he Court finds
that USCIS properly exercised its jurisdiction over Haroun’s application when it issued its denial
while Haroun’s lawsuit was pending before the Court.”). Since this lawsuit was filed, USCIS
completed its review of Alwan’s application and denied it, rendering the relief she seeks in the
amended complaint moot. Mootness is a jurisdictional bar. Id. at *6 (citing Arkansas AFL-CIO
v. F.C.C., 11 F.3d 1430, 14235 (8th Cir. 1993)). Moreover, Alwan has administratively appealed
her denial, and until the USCIS resolves her appeal, this matter is not ripe for review.
Alwan does not address the remaining claims in the complaint challenging CARRP on
constitutional and statutory grounds. Defendants argue these claims must also be dismissed for
lack of subject matter jurisdiction because Alwan lacks standing to bring them (Doc. No. 22 at 5
n.8). The Court addressed the standing issue in Haroun, and concluded that the plaintiff had no
present interest, “other than vindication,” in a declaratory judgment on his claims arising from
USCIS’s application of CARRP as to him, and thus failed to allege an injury sufficient to confer
standing. 2017 WL 3168530, at *7. Likewise, Alwan has not alleged a substantial likelihood of

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future injury. She argues that her interest in United States citizenship has been adversely affected
by the application of CARRP to her naturalization application. (AC at ¶¶ 116, 121, 125, 130,
135). In actuality, each of her constitutional and statutory claims is grounded in the alleged
procedural deficiencies in USCIS’s review of her application—a review that has concluded. As
Defendants point out, while Alwan may submit another naturalization application, the
application at issue here has been adjudicated and is now under administrative appeal. Thus,
there is no likelihood that this application will ever come before USCIS again for adjudication.
Given Alwan’s lack of standing, the CARRP claims will also be dismissed for lack of subject
matter jurisdiction.
For these reasons, the amended complaint will be dismissed without prejudice for lack of
subject matter jurisdiction.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss the First Amended
Complaint [22] is GRANTED.
A separate judgment of dismissal will accompany this Memorandum and Order.

Dated this 24th day of August, 2017.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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