United States District Court, D. New Jersey
ESTHER SALAS, District Judge.
This action arises out of Plaintiff Satnam Singh's Application for Adjustment of Status ("Form I-485 application"). ( See D.E. No. 1, Complaint ("Compl.")). Despite a "processing timeframe" of four months, Plaintiff's Form I-485 application has been pending before the United States Citizen and Immigration Services ("USCIS") for over ten years, a delay which Plaintiff characterizes as "unreasonable and unconscionable." (Id. ¶¶ 13-15, 19). On January 17, 2014, Plaintiff filed a complaint for declaratory relief and petition for writ of mandamus, seeking adjudication of his Form I-485 and adjustment of his status. (Id. at 6-7). Presently before the Court is Defendants' motion to dismiss Plaintiff's Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (D.E. No. 12).
Defendants primarily argue that this Court lacks subject matter jurisdiction due to a jurisdiction-stripping provision of the Immigration and Nationality Act (INA). ( See D.E. No. 12-1, Defendants' Brief in Support of Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Claim ("Def. Mov. Br.") at 11-20); see also D.E. No. 16, Defendants' Reply Brief ("Def. Reply Br.") at 3-10) (analyzing 8 U.S.C. § 1252(a)(2)(B)(ii)). In opposition, Plaintiff contends that the jurisdiction-stripping provision does not apply because nothing in the relevant statutes permits an indefinite hold, and that an indefinite hold is not an "action" within the meaning of the statute. ( See D.E. No. 15-4, Plaintiff's Brief in Opposition ("Pl. Opp. Br.") at 4-7).
The Court resolves Defendants' motion without oral argument pursuant to Federal Rule of Civil Procedure 78(b). Because the Court finds that the pace of processing adjustment applications is discretionary and that the jurisdiction-stripping provision outlined in 8 U.S.C. § 1252(a)(2)(B)(ii) applies, Defendants' motion to dismiss is GRANTED and Plaintiff's Complaint for declaratory relief and petition for writ of mandamus is dismissed with prejudice.
II. LEGAL AND FACTUAL BACKGROUND
a. Legal Background Pertaining to Adjustment of Status
The Secretary of the Department of Homeland Security ("Secretary") is authorized, in his discretion, to "adjust" to permanent residence status certain aliens who have been admitted to the United States as asylees. 8 U.S.C. § 1159(b). Asylees who have been physically present in the United States for at least one year and who are otherwise eligible may apply for adjustment. 8 U.S.C. § 1159(b)(1).
An alien who has been granted asylum and applies to adjust his status must be admissible to the United States in order to become a lawful permanent resident. 8 U.S.C. § 1159(b). Among other criteria, a person is not admissible if he "has engaged in terrorist activity, " which includes being a member of or providing "material support" to a "terrorist organization." 8 U.S.C. §§ 1182(a)(3)(B)(i)(I), (V), 1182(a)(3)(B)(iv)(VI).
However, Congress amended § 1182 in 2008 to give the Government greater discretion to exempt groups or individuals from the inadmissibility provisions. See 8 U.S.C. § 1182(d)(3)(B)(i); Pub. L. No. 110-161, 121 Stat. 1844, 2364-65 (relevant provision of Act). Specifically, the Secretary of State or the Secretary of Homeland Security, after consultation with one another and with the Attorney General, "may determine in such Secretary's sole unreviewable discretion" that a particular person or organization should be exempted from the "engaged in a terrorist activity" inadmissibility provisions of § 1182(a)(3). As a result, USCIS issued a memorandum in 2008 instructing agency adjudicators to withhold adjudicating cases that could potentially benefit from this discretionary authority. (Canaan Decl. ¶ 29).
b. Plaintiff's Form I-485 Application for Adjustment of Status
Plaintiff, a citizen of India, entered the United States in 2002 and applied for asylum status, which was granted in February 2003. (Canaan Decl. ¶ 3). On May 24, 2004, Plaintiff filed a Form I-485 application with USCIS, seeking adjustment of status to that of a lawful permanent resident. (Id. ¶ 4). Plaintiff's Form I-485 application remains pending. (Id. ).
In accordance with the USCIS background checks described above in footnote 3, Plaintiff has been fingerprinted six times to remain up-to-date, his preliminary TECS checks have been completed, and the FBI completed his name check in June 2004. (Id. ¶¶ 9-11). However, Plaintiff's application for adjustment of status remains pending because of terrorism-related grounds of inadmissibility. (Id. ¶¶ 12-13).
Plaintiff admitted on his asylum application and in his opposition brief that while in India he joined Damdami Taksal in 1988 and served the Damdami Taksal as a priest from 1992 to 2001. (Canaan Decl. ¶ 13; Pl. Opp. Br. 12-13). While Plaintiff asserts that his involvement in the organization was "as nothing more than a religious man, " (Pl. Opp. Br. 13), Defendants claim that Plaintiff "transported people to political gatherings, attended rallies, and distributed pro-Khalistan political literature." (Canaan Decl. ¶ 13). Defendants claim that Damdami Taksal meets the definition of an undesignated Tier III terrorist organization because it engaged in combat against the Indian government and soldiers from 1984 to 1990. (Id. ). As a result, Defendants contend that Plaintiff "engaged in a terrorist activity" within the meaning of 8 U.S.C. § 1182(a)(3), and that he is therefore inadmissible. (Id. ¶ 14).
However, rather than deny Plaintiff's Form I-485 application, Defendants have placed it on hold in accordance with the 2008 USCIS memorandum. ( See id. ¶¶ 33, 34). For example, in April 2010, USCIS provided Plaintiff with the following explanation for the delay in processing his Form I-485 application:
Your case is on hold because you appear to be inadmissible under [Section] 212(a)(3)(b) of the INA ["engaged in a terrorist activity"], and USCIS currently has no authority not to apply the inadmissibility ground(s) to which you appear to be subject. Rather than denying your application based on inadmissibility, we are holding adjudication in abeyance while the Department of Homeland Security considers additional exercises of the Secretary of Homeland Security's discretionary exemption authority. Such an exercise of the exemption authority might allow us to approve your case.
(D.E. No. 1-5, Compl., Ex. E ("April 2010 email")). As no exemption currently exists for Plaintiff, USCIS explained that if it "were ordered to complete the adjudication of Plaintiff's application for adjustment of status, the case would likely be denied without prejudice to allow Plaintiff to refile." (Canaan Decl. ¶ 33). USCIS asserts that it continues to hold Plaintiff's application in case a discretionary exemption becomes available and applicable for Plaintiff's ...