Haydary v. Garland et al

Filing 11

MEMORANDUM AND ORDER - For the foregoing reasons, Defendants' Motion to Dismiss (Doc. 5) is GRANTED. This matter is DISMISSED with prejudice for lack of subject matter jurisdiction. (See full Memo & Order for details) Signed by Magistrate Judge John M. Bodenhausen on 11/25/2024. (KRZ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SAYED MIRWAIS HAYDARY,

)
)
Plaintiff,
)
)
vs.
)
)
MERRICK B. GARLAND, ALEJANDRO N. )
MAYORKAS, UR M. JADDOU, ANTONY J. )
BLINKEN,
)
)
Defendants.
)

Case No. 4:24 CV 836 JMB

MEMORANDUM AND ORDER
This matter is before the Court is Defendants’ Motion to Dismiss (Doc. 5). For the reasons
set forth below, the Motion is GRANTED and this matter is DIMISSED with prejudice.
I.

Introduction
Plaintiff Sayed Mirwais Haydary, filed a pro se complaint on June 17, 2024 (Doc. 1)

alleging that Defendants, in violation of federal law, failed to expeditiously adjudicate his request
to permit his family to enter the United States from Azerbaijan. Plaintiff alleges that he made his
request pursuant to a “humanitarian parole” process, but that Defendants have failed to adjudicate
his request for over two years. As a result, he alleges that six family members, who are all Afghan
nationals, have suffered from the unreasonable delay. He claims violations of the Administrative
Procedures Act (APA), 5 U.S.C. § 701, et seq. (Count I) and the Mandamus and Venue Act of
1962 (MVA), 28 U.S.C. § 1361 (Count II), and he seeks relief pursuant to the Declaratory
Judgment Act, 28 U.S.C. § 2201, et seq. (Count III). In his prayer for relief, he seeks a particular
order directing Defendants to adjudicate his request within 60 days.

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In their Motion to Dismiss, Defendants argue that this Court lacks subject matter
jurisdiction over the claims alleged (Doc. 5). Plaintiff filed a response (Doc. 8),1 to which
Defendants replied (Doc. 10).
II.

Standard
Jurisdiction is a threshold requirement which may be raised at any time and by any party

or the court. Gray v. City of Valley Park, Mo., 567 F.3d 976, 982 (8th Cir. 2009). See also, City
of Kansas City, Mo. v. Yarco Co., Inc., 625 F.3d 1038, 1040 (8th Cir. 2010) (“Federal courts have
an independent duty to determine subject matter jurisdiction, even where the matter is raised for
the first time on appeal and on the court’s own motion.”). The burden of proving subject matter
jurisdiction belongs to the Plaintiff, as the party asserting jurisdiction. V S Ltd. P’ship v. Dep’t of
Housing & Urban Dev., 235 F.3d 1109, 1112 (8th Cir. 2000); See also, Magee v. United States, 9
F.4th 675, 680 (8th Cir. 2021) (“The burden of proving the existence of subject matter jurisdiction
rests with the party invoking federal jurisdiction.”).
In considering a Federal Rule of Civil Procedure 12(b)(1) motion, the Court must first
determine whether Defendants are making a facial or a factual challenge to the assertion of subject
matter jurisdiction. Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993) (“In order to properly dismiss
for lack of subject matter jurisdiction under Rule 12(b)(1), the complaint must be successfully
challenged on its face or on the factual truthfulness of its averments.”); Branson Label, Inc. v. City
of Branson, Mo., 793 F.3d 910, 914 (8th Cir. 2015). A facial challenge presumes that the factual

Defendants point out the response was late and that it was mailed from “The Anwari Law Firm” located in Falls
Church, Virginia. Defendants state that the Court should be concerned that Plaintiff’s filings may be “ghostwritten”
by an attorney who has not entered an appearance and that Plaintiff should therefore not be entitled to any leeway that
his pro se status may afford. Defendants do not, however, seek any particular relief (like the striking of a pleading)
as to these circumstances.
The Court notes that in documents attached to the Complaint, attorney Deeba Anwari represents that she is
Plaintiff’s attorney of record in the immigration proceedings (Docs. 1-1 and 1-2). It certainly would be helpful to the
Court if Attorney Anwari entered an appearance in this matter, especially given the complicated legal nature of this
case. However, Plaintiff is not required to retain his immigration lawyer as his attorney of record in this civil case.
1

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allegations in the complaint are true but that some element necessary for subject matter jurisdiction
is missing. Titus, 4 F.3d at 593. Defendants here are asserting a factual challenge to Plaintiff’s
claims; that Plaintiff has not proven jurisdiction. On such an attack, Plaintiff does not benefit from
the factual safeguards inherent in a Rule 12(b)(6) analysis and the Court may look at other evidence
to determine the facts. Carlsen v. Gamestop, Inc., 833 F.3d 903, 908 (8th Cir. 2016); Osborn v.
United States, 918 F.2d 724 (8th Cir. 1990).
Typically, any factual disputes would be resolved by the Court through an evidentiary
hearing. Osborn, 918 F.2d at 730. In this particular case, however, Defendants do not dispute the
facts laid out in the Complaint; there are no factual disputes.

Rather, Defendants have

supplemented the record to include a recitation of the administrative process, and structure and
content of the relevant immigration policies, that inform the decision-making of which Plaintiff
complains. Indeed, Defendants argue that a determination of subject matter jurisdiction relies on
purely legal conclusions, albeit with an understanding of the administrative process. Plaintiff does
not object to Defendants’ framing of the issues nor does he request an evidentiary hearing. In his
Complaint, he refers to the very “USCIS Rules and standards” that the Defendants have explained
through an affidavit (Doc. 1, p. 6, ¶ 26). Even if Plaintiff were to make a request for an evidentiary
hearing, there is no showing that there are any facts in dispute that would require resolution. The
Court finds that an evidentiary hearing is unnecessary, that there are purely legal issues for
consideration, and that this matter may be resolved on the papers.

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III.

Background
It is undisputed that Plaintiff is a United States citizen who applied for humanitarian parole

on behalf of six family members on February 18, 2022, after the United States ceased operations
in Afghanistan and the Taliban took over (Doc. 1, p. 3, ¶ 9). Plaintiff represents that his family
moved from Kabul, Afghanistan due to the “looming danger” posed by the Taliban takeover and
currently suffer from the lack of decision on the request for humanitarian parole. On September
15, 2022, Plaintiff’s attorney, Deeba Anwari, sent an e-mail to the United States Citizenship and
Immigration Service’s (USCIS) Humanitarian Affairs Branch requesting that the applications be
processed expeditiously. She states that Plaintiff’s family was attacked on the road and that certain
family members were killed – she also noted the dire economic crisis and difficulty with necessities
experienced in Afghanistan (Doc. 1-2). It is unclear whether Plaintiff informed USCIS that his
family was in Azerbaijan, as alleged in his Complaint. On January 30, 2023, the USCIS informed
Plaintiff that while it normally would take 90 to 120 days to process his request, the processing
time will take longer than 90 days due to high volume (Doc. 1-1). Plaintiff’s applications remain
pending.
Brandon Prelogar is the Chief of the International and Refugee Affairs Division (IRAD)
within the USCIS, which is a division of the Department of Homeland Security headed by
Secretary Alejandro N. Mayorkas (Doc. 6-2, ¶ 1). Mr. Prelogar is responsible for policy decisions
related to Parole Operations, a component of IRAD and formerly known as the Humanitarian
Affairs Branch, which adjudicates the parole requests made by individuals like Plaintiff (Id. ¶ 2).
It is undisputed that Mr. Prelogar has a vast array of expertise in United States’ policies and
procedures related to humanitarian migration including the type of parole request made by Plaintiff
(Id. ¶ 3).

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Mr. Prelogar states that humanitarian parole is an extraordinary measure that would allow
an individual to enter United States controlled territory on a temporary basis and that it does not
circumvent the normal visa and immigration process and timelines (Id. ¶ 5). Anyone can request
humanitarian parole by filing a Form I-131, Application for Travel Document, along with other
forms, declarations, evidence, and fees (Id. ¶¶ 8-9). The applications undergo a preliminary
assessment to determine the urgency of the request with a target of a two-day turnaround (Id. ¶
11). Applications are prioritized based on a number of circumstances that can include the danger
to the applicant, time-sensitive scheduled medical procedures or appointments, prioritization due
to judicial decrees and orders, and logistical concerns (Id. ¶¶ 12-13). In particular, USCIS
prioritizes applications from Afghan nationals who reside outside of Afghanistan and near a U.S.
Embassy or consulate because such persons are able to complete various necessary verification
procedures in person (Id. ¶ 14). There is no U.S. Embassy or consulate in Afghanistan.
After the preliminary assessment, applications are assigned to an adjudicator (Id. ¶ 16).
Applications that are not expedited are handled on a first-in-first-out basis; however, the order in
which applications are assessed also depends on particular circumstances or concerns. For
example, a later filed application may be considered along with a more recently filed application
if the applications relate to the same family (Id. ¶ 17). The adjudicator then determines whether
to make a Request for More Evidence (RFE), send a Notice of Intent to Deny, or prepare the
application for review by a supervisor in anticipation of approval or denial (Id. ¶ 18). Most
applications are issued an RFE which delays consideration of the application (Id. ¶ 19). Delays
can also occur because other agencies must conduct security checks (Id. ¶ 20). Once an application
is submitted to a supervisor for review, and the supervisor concurs with the adjudicator, the

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applicant is informed (Id. ¶ 21-22). If parole is denied, the applicant may appeal the decision
within 30 days; if
parole is granted, additional in-person processing is required (Id. ¶ 23). Even after this
process, an agent at a point of entry makes a final determination of whether parole should be
granted (Id. ¶ 24). Mr. Prelogar did not provide any specific information as to Plaintiff’s
applications for parole.
IV.

Discussion
Federal Courts are courts of limited subject matter jurisdiction. Crain v. Crain, 72 F.4th

269, 276 (8th Cir. 2023). This Court’s jurisdiction is defined by the Constitution and federal
statute. Badgerow v. Walters, 596 U.S. 1, 7-8 (2022).
Plaintiff asserts that federal question jurisdiction exists because this is a “civil action[ ]
arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. On the
surface, this appears accurate.

See, e.g., Irshad v. Johnson, 754 F.3d 604 (8th Cir. 2014)

(considering an unreasonable delay claim pursuant to the APA but stating that “we need not
address questions of ‘statutory jurisdiction’ sua sponte” because the issue was not raised on
appeal). Plaintiff asserts that he is entitled to relief pursuant to federal law, namely the APA,
MVA, and the Declaratory Judgment Act. He seeks the same relief pursuant to all three statutes:
an order compelling Defendants to adjudicate his immigration applications in accordance with
federal immigration law (Doc. 1, p. 4, ¶ 15). As noted above, Plaintiff bears the burden of showing
subject matter jurisdiction exists. Hilger v. United States, 87 F.4th 897, 899 (8th Cir. 2023).
The APA provides that: “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 statute further provides that in reviewing

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an agency decision, the Court shall “compel agency action unlawfully withheld or unreasonably
delayed.” 5 U.S.C. § 706(1). Similarly, MVA provides that a plaintiff may petition the Court for,
and the Court has jurisdiction to issue, a writ of mandamus that would “compel an officer or
employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” 28
U.S.C. § 1361. Claims pursuant to the APA and MVA are typically considered under the same
standard. See Organization for Competitive Markets v. U.S. Dept. of Agriculture, 912 F.3d 455,
461-462 (8th Cir. 2018). There is a presumption in favor of judicial review of federal agency
decisions. Kucana v. Holder, 558 U.S. 233, 251 (2010). That presumption can only be dislodged
if there is clear congressional intent to prevent review. Id. at 251-252.
Plaintiff alleges that the Department of Homeland Security/Attorney General, in
accordance with Section 212 of the Immigration and Nationality Act (INA), must:
in his discretion, parole into the United States temporarily under such conditions as
he may prescribe only on a case-by-case basis for urgent humanitarian reasons or
significant public benefit any alien applying for admission to the United States, but
such parole of such alien shall not be regarded as an admission of the alien and
when the purposes of such parole shall, in the opinion of the Attorney General, have
been served the alien shall forthwith return or be returned to the custody from which
he was paroled and thereafter his case shall continue to be dealt with in the same
manner as that of any other applicant for admission to the United States.
8 U.S.C. § 1182(d)(5)(A). The statute permits the Attorney General discretionary authority to
parole a foreign national into the United States or its territories for a particular purpose and to
return the foreign national once the purposes of parole have been fulfilled. Plaintiff further
requested that his applications for humanitarian parole be “expedited due to an urgent and severe
humanitarian situation” (Doc. 1-2, p. 3).2 Plaintiff acknowledges that the decision to grant or deny
humanitarian parole is left to the discretion of the USCIS; however, he states that the agency’s
duty to actually adjudicate the claim in a timely manner is non-discretionary (Doc. 1, p. 4, ¶ 14).

2

As noted above, the USCIS indicated that it is unable to expedite Plaintiff’s applications (Doc. 1-2, p. 7).

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Thus, Plaintiff argues that Defendants have a duty to expeditiously resolve his parole applications
and that this Court has the jurisdiction to compel them to act.
Defendants argue that there is clear congressional intent to preclude judicial review and
rely on the recently decided Thigulla v. Jaddou, 94 F.4th 770 (8th Cir. 2024). In that case, the
plaintiffs sought relief pursuant to the APA to compel the government to determine a request to
adjust their status from temporary visa holders to permanent residents pursuant to 8 U.S.C. §
1255(a).3 Id. at 771. The Court held that 8 U.S.C. § 1252(a)(2)(B)4 presents a jurisdictional bar

3

The statute provides:
(a) Status as person admitted for permanent residence on application and eligibility for immigrant
visa
The status of an alien who was inspected and admitted or paroled into the United States or the status
of any other alien having an approved petition for classification as a VAWA self-petitioner may be
adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe,
to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application
for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the
United States for permanent residence, and (3) an immigrant visa is immediately available to him at
the time his application is filed.

8 U.S.C.A. § 1255(a).
4

This Code section provides:
(a) Applicable provisions
***
(2) Matters not subject to judicial review
***
(B) Denials of discretionary relief
Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of
Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except
as provided in subparagraph (D), 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

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to both compelling the decision regarding a status adjustment and any delay in adjudicating the
same. Id. at 775-776 (“The text of § 1252(a)(2)(B)(ii) and § 1255(a) is clear and convincing
evidence that Congress intended to preclude judicial review of the Attorney General’s
discretionary decisions about the status adjustment process under § 1255(a) like the Adjudication
Hold Policy.”).
Of course, this case does not involve an adjustment of status from visa holder to permanent
resident. Nonetheless, the holding in Thigulla, is controlling. In reaching its decision that there
was clear congressional intent to bar judicial review, the Court held the following:
Two elements trigger § 1252(a)(2)(B)(ii)’s jurisdictional bar: (1) a decision or
action by the Attorney General or the Secretary of Homeland Security and (2)
statutorily specified discretion under Subchapter II of Chapter 12 of Title 8 (8
U.S.C. §§ 1151–1381) (Subchapter II)
Id. at 774. Plaintiff in this case seeks relief pursuant to § 1182, which is within Subchapter II of
Chapter 12 of Title 8. The statute vests discretion to the Attorney General to grant parole “under
such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons
. . . .” Id. at §1182(d)(5)(A). As demonstrated by Mr. Prelogar, parole decisions are subject to a
variety of factors considered by the USCIS – these decisions and actions (or inactions) are similar
to the Adjudication Hold Policy at issue in Thigulla. In Plaintiff’s case, the USCIS has decided
not to expedite Plaintiff’s request (an inaction as it were) and instead consider his request pursuant
to its policies. This discretionary decision is subject to the jurisdictional bar. See Soni v. Jaddou,
103 F.4th 1271, 1273 (7th Cir. 2024) (in considering a similar argument on another section of the
INA, stating that “[n]o review means no review; the statue does not need to list all the many

the Attorney General or the Secretary of Homeland Security, other than the granting of
relief under section 1158(a) of this title.
8 U.S.C.A. § 1252(a)(2)(B). Although the Section is entitled “Judicial Review of order of removal,” it applies to nonremoval proceedings. See Cheejati v. Blinken, 106 F.4th 388, 395-396 (5th Cir. 2024).

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potential legal theories that are not reviewable”). Plaintiff has offered no counter-argument to the
conclusion that his request under the APA and MVA falls within the ambit of Thigulla and that
Congress has clearly set forth a jurisdictional bar to such claims. His arguments only demonstrate
that he is impermissibly seeking “general legal oversight of the Legislative and Executive
Branches.” TransUnion LLC v. Ramirez, 594 U.S. 413, 423-424 (2021).
V.

Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss (Doc. 5) is GRANTED. This

matter is DISMISSED with prejudice for lack of subject matter jurisdiction.

/s/ John M. Bodenhausen
JOHN M. BODENHAUSEN
UNITED STATES MAGISTRATE JUDGE
Dated this 25th day of November, 2024

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