Al Haddad v. Jones ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AHMED ZAKI DAWOOD AL-HADDAD, :
:
Plaintiff, : Civil Action No.: 18-cv-674 (RC)
:
v. : Re Document No.: 7
:
JEFFERSON B. SESSIONS, III, et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING DEFENDANTS’ MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION
I. INTRODUCTION
Plaintiff Ahmed Zaki Dawood Al-Haddad has brought this lawsuit under the
Administrative Procedure Act, 5 U.S.C. § 701 et seq., to challenge the denial of his application
for refugee resettlement in the United States under Section 207 of the Immigration and
Naturalization Act, 8 U.S.C. § 1157. Defendants now move to dismiss for lack of subject matter
jurisdiction and failure to state a claim, arguing that his claims are non-justiciable and barred by
longstanding principles of nonreviewability of visa denials. Because it lacks jurisdiction to
review discretionary denials of refugee resettlement applications, the Court grants the motion to
dismiss.
II. BACKGROUND
Plaintiff Ahmed Zaki Dawood Al-Haddad (“Al-Haddad”) is an Iraqi national who lives in
Baghdad. See 2014 Request for Review, Compl. Ex. 4, at 1, ECF No. 1-4. Al-Haddad and his
family have a history of involvement with U.S.-led and funded efforts in Iraq since at least 2007.
See id. at 1–2. In 2007, Al-Haddad and his family were forced to temporarily relocate to Syria
after a failed kidnapping attempt on one of his family members caused by his older brother’s
work in the International Zone in Baghdad. Id. at 2. Between 2009 and 2013, Al-Haddad
himself worked as a network engineer on a number of U.S. government contracts in the
International Zone. Id. at 1. Al-Haddad also acted as a translator for Reuters’ chief bureau
officer in Baghdad during that time. Id. And between at least February and September 2014, Al-
Haddad worked as a Communications Officer with the U.S. Agency for International
Development. Id. at 8. As a result of their work in the International Zone and on U.S.-led
projects, both Al-Haddad, his family, and his co-workers were targeted for reprisals on numerous
occasions over the years. See id. at 2. Aside from the 2007 kidnapping attempt, Al-Haddad and
his family were threatened on several occasions between 2009 and 2012. Id. After several of
Al-Haddad’s family members were admitted to the United States as refugees in 2012, threats
against Al-Haddad and his older brother continued. Id. at 2–3.
Al-Haddad applied for refugee resettlement in the United States at some point in 2010 or
earlier. See id. at 2. Under Section § 207 of the Immigration and Naturalization Act (“INA”), 8
U.S.C. § 1157, the admission of refugees is committed to the discretion of the Secretary of the
Department of Homeland Security. See 8 U.S.C. § 1157(c)(1); 6 U.S.C. § 557. On June 16,
2014, the U.S. Citizenship and Immigration Services (“USCIS”) issued Al-Haddad a notice of
ineligibility for resettlement. Compl. at 5; 2014 Notice of Ineligibility, Compl. Ex. 1, at 1, ECF
No. 1-1. The notice explained that Al-Haddad’s application for refugee resettlement under § 207
of the INA had “been denied as a matter of discretion for security-related reasons.” 2014 Notice
of Ineligibility at 2.
On September 8, 2014, Al-Haddad filed a request for review of the denial, attaching a
number of documents in support. Compl. at 5; see generally 2014 Request for Review. While
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there is no formal mechanism for review of refugee resettlement applications, see 8 U.S.C. §
1157; 8 C.F.R. § 207.4 (“There is no appeal from a denial of refugee status under this chapter”),
USCIS considers informal requests for review of such denials in its discretion, see Defs.’ Mem.
Supp. Mot. Dismiss at 3, ECF No. 7. In this case, USCIS initially responded to the request for
review on September 11, 2017, overturning the denial of the request for resettlement and
indicating that Al-Haddad was “now conditionally eligible for resettlement, pending all
necessary . . . security clearances.” Sept. 11, 2017 Request for Review Response, Compl. Ex. 9,
at 1, ECF No. 1-9. However, just nine days later on September 20, 2017, USCIS issued Al-
Haddad a second notice of ineligibility for resettlement, referencing both his initial application
for refugee resettlement and his request for review. Compl. at 7; Sept. 20, 2017 Notice of
Ineligibility, Compl. Ex. 10, at 1, ECF No. 1-10. As with the 2014 notice, USCIS indicated that
“[a]fter a review of all the information concerning [Al-Haddad’s] case,” his application for
refugee resettlement had been denied “as a matter of discretion for security reasons.” Sept. 20,
2017 Notice of Ineligibility at 2.
On March 24, 2018, Al-Haddad brought suit against various U.S. government officials,
alleging that the denial of his refugee resettlement application was an arbitrary and capricious
decision in violation of the Administrative Procedure Act (“APA”). Compl. at 2–3. On June 15,
2018, Defendants moved to dismiss for lack of subject matter jurisdiction and failure to state a
claim. See Defs.’ Mot. Dismiss at 1, ECF No. 7. Al-Haddad filed his opposition on August 6,
2018, Pl.’s Mem. Opp’n Mot. Dismiss at 1, ECF No. 10, and Defendants filed their reply on
August 17, 2018, Defs.’ Reply at 1, ECF No. 12. The motion to dismiss is now ripe for
consideration.
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III. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(1) provides for the dismissal of an action for lack
of subject matter jurisdiction. Federal courts are courts of limited jurisdiction, and it is generally
presumed that “a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377 (1994). Accordingly, it is imperative that this Court “begin, and
end,” with an examination of its jurisdiction. Gen. Motors Corp. v. EPA, 363 F.3d 442, 448
(D.C. Cir. 2004).
It is the plaintiff’s burden to establish that the court has subject matter jurisdiction over
his or her claims. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). In determining whether
the plaintiff has met this burden, a court must accept “the allegations of the complaint as true,”
Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015), and “construe the
complaint liberally, granting the plaintiff the benefit of all inferences that can be derived from
the facts alleged[,]” Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004) (internal quotation
marks omitted). However, “the plaintiff’s factual allegations in the complaint . . . will bear
closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to
state a claim.” Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13-14
(D.D.C. 2001).
IV. ANALYSIS
Al-Haddad challenges the discretionary denial of his refugee resettlement application
pursuant to 8 U.S.C. § 1157(c)(1). He brings this challenge under § 702 of the APA, arguing
that the denial caused a legal wrong that entitles him to judicial review. Compl. at 3 (citing 5
U.S.C. § 702). Defendants argue that the Court does not have jurisdiction over Al-Haddad’s
APA claims because the INA expressly divested courts of jurisdiction over discretionary
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decisions like refugee resettlement denials. Defs’ Mem. Supp. at 6. The Court agrees with
Defendants, and accordingly grants the motion to dismiss.
“The APA confers a general cause of action upon persons ‘adversely affected or
aggrieved by agency action within the meaning of a relevant statute.’” Block v. Cmty. Nutrition
Inst., 467 U.S. 340, 345 (1984) (quoting 5 U.S.C. § 702). However, the APA “withdraws that
cause of action to the extent the relevant statute ‘preclude[s] judicial review.’” Id. (alteration in
original) (quoting 5 U.S.C. § 701(a)(1)). And the INA includes such a restriction on judicial
review: it provides that “any . . . decision or action of . . . the Secretary of Homeland Security the
authority for which is specified . . . to be in the discretion of the . . . . Secretary of Homeland
Security” is not subject to judicial review by federal courts. 8 U.S.C. § 1252(a)(2)(B)(ii).
Section 1252 only includes a limited exception for review of constitutional claims or questions of
law brought in a petition for review of a final removal order in a court of appeals. Id.
§ 1252(a)(2)(D).
The section of the INA pursuant to which Al-Haddad submitted his refugee resettlement
application provides that the Secretary of Homeland Security “may, in the [Secretary’s]
discretion and pursuant to such regulation as the [Secretary] may prescribe, admit any refugee
who is not firmly resettled in any foreign country, is determined to be of special humanitarian
concern to the United States, and is admissible . . . as an immigrant.” 8 U.S.C. § 1157(c)(1). 1
Defendants accordingly argue that the jurisdiction-stripping provisions of § 1252(a)(2)(B)(ii)
foreclose any judicial review of Al-Haddad’s claims, when Al-Haddad is not petitioning for
1
The text of 8 U.S.C. § 1157 leaves the admission of refugees to the discretion of the
Attorney General. However, authority over refugee admission was transferred to the Secretary
of Homeland Security after the passage of the Homeland Security Act of 2002. See Pub. L. No.
107-296, §§ 451, 1517, 116 Stat. 2135, 2196, 2311 (codified as amended at 6 U.S.C. §§ 271,
557).
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review of a final removal order before a court of appeals. See Defs.’ Mem. Supp. at 6 & n.2.
Defendants point out that the Supreme Court has specifically identified refugee admission
decisions as a type of “decision[] specified by statute to be in the discretion of the attorney
General, and therefore shielded from court oversight by § 1252(a)(2)(B)(ii).” Id. at 6 (quoting
Kucana v. Holder, 558 U.S. 233, 248 (2010)). The Court agrees.
Al-Haddad argues that his claims are reviewable because the fact that “the Secretary of
Homeland Security has the ultimate discretionary authority to issue a decision in particular cases,
does not mean that every determination is discretionary, and hence not subject to review.” Pl.’s
Mem. Opp’n at 6 (citing Mejia Rodriguez v. Dep’t of Homeland Sec., 562 F.3d 1137 (11th Cir.
2009)). Al-Haddad contends that absent additional language rendering the Secretary of
Homeland Security’s determination fully within her discretion, a grant of authority to the
Secretary to make a determination is not “specified to be in [her] discretion” under
§ 1252(a)(2)(B)(ii) and is thus reviewable by Courts. Id. (citing Alaka v. Attorney General, 456
F.3d 88, 95–96 (3d Cir. 2006); Nethagani v. Mukasey, 532 F.3d 150, 154–55 (2d Cir. 2008)).
Separately, Al-Haddad also argues that the APA provides for the review of agency actions that
are arbitrary, capricious, or an abuse of discretion. Id. at 7 (citing 5 U.S.C. § 706(2)(A)). Al-
Haddad’s arguments are unavailing.
Al-Haddad is undoubtedly correct that a statutory grant of authority to the Secretary of
Homeland Security to make a determination in the INA is not alone enough for that
determination to be “specified . . . to be in [her] discretion,” 8 U.S.C. § 1252(a)(2)(B)(ii), and
thus unreviewable. Courts reviewing claims alleged to be foreclosed by § 1252(a)(2)(B)(ii) have
generally found that “the provision only applies to the ‘narrower category of decisions where
Congress has taken the additional step to specify that the sole authority for the action is in the
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[Secretary]’s discretion.’” Liu v. Novak, 509 F. Supp. 2d 1, 7 (D.D.C. 2007) (quoting Alaka, 456
F.3d at 95).
Courts have thus refused to apply the jurisdictional bar in two sets of circumstances.
First, courts have entertained claims under sections of the INA that do not expressly provide for
agency discretion. See, e.g., Alaka, 456 F.3d at 101–02 (finding that grant of authority to
“decide” and “determin[e]” whether alien should benefit from withholding of removal under 8
U.S.C. § 1231(b)(3) did not specify discretion to the Attorney General, and thus that decision to
deny withholding of removal was not unreviewable under § 1252(a)(2)(B)(ii)). And second,
even when a section of the INA provides that the ultimate decision is in the executive’s
discretion, courts have considered claims relating to statutory eligibility for relief, which is often
a precursor for the ultimate discretionary decision. See, e.g., Mejia Rodriguez, 562 F.3d at 1143–
44 (noting that while ultimate decision to grant temporary protected status was discretionary,
“the director of USCIS is required to make many decisions based on his legal interpretation of an
alien’s statutory eligibility . . . before exercising his discretionary authority,” and review of those
statutory eligibility decisions was not precluded by § 1252(a)(2)(B)(ii)).
However, neither circumstance is at issue here. § 1157(c)(1) leaves the admissibility of
refugees to “the [Secretary of Homeland Security’s] discretion.” 8 U.S.C. § 1157(c)(1). Courts
to have reviewed the issue have also indicated that Congress expressly provided for agency
discretion in § 1157(c)(1). See, e.g., Kucana v. Holder, 558 U.S. 233, 248 (2010) (pointing to
§ 1157(c)(1) as an example of a “decision[] specified by statute ‘to be in the discretion of the
Attorney General,’ and therefore shielded from court oversight” (quoting 8 U.S.C.
§ 1252(a)(2)(B)(ii))); Bernardo ex rel. M & K Eng’g, Inc. v. Johnson, 814 F.3d 481, 501 (1st Cir.
2016) (Lipez, J., dissenting) (same); Alaka, 456 F.3d at 97 n.17; Doe v. Trump, 288 F. Supp. 3d
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1045, 1071 (W.D. Wash. 2017) (same). As Defendants note, Defs.’ Reply at 2, and as
recognized by these courts, the language of § 1157(c)(1) clearly invokes the jurisdiction-
stripping provision of § 1252(a)(2)(B)(ii).
And this case is not one where Al-Haddad asks for review of a statutory eligibility
determination or of another non-discretionary decision, as the plaintiff did in Mejia Rodriguez.
Neither is Al-Haddad challenging the government’s failure to act. Cf. Doe, 288 F. Supp. 3d at
1071–72 (contrasting plaintiffs’ claims that the Secretary of Homeland Security “fail[ed] to act
on refugee applications” with circumstances where a plaintiff would “challeng[e] a denial of
refugee admission,” and noting that pursuant to § 1157(c)(1), “the Secretary may have discretion
over what the decision will be, but not over whether a decision will be made”). Here, Al-Haddad
asks this Court to reverse “the wrongful denial of [his] Application for Refugee Resettlement in
the U.S. ‘as a matter of discretion for security related reasons.’” Compl. at 2 (quoting 2014
Notice of Ineligibility at 2). He specifically requests that this Court “[o]rder Defendants to
reopen and approve Plaintiff’s Application and issue the corresponding visa to . . . Plaintiff.” Id.
at 8. Al-Haddad points to the inconsistency between USCIS’s approval of his request for
reconsideration and the renewed denial of his application only a few days later. See Pl.’s Mem.
Opp’n at 7. But the September 20, 2017 Notice of Ineligibility specifically refers both to Al-
Haddad’s application and to his request for review, see Sept. 20, 2017 Notice of Ineligibility at 1,
and indicates that Al-Haddad’s application is denied as a matter of discretion “[a]fter a review of
all the information concerning [his] case,” id. at 2. As with the initial notice, the renewed notice
thus makes clear that USCIS made a final, discretionary decision in light of all the information it
had available. The jurisdiction-stripping provision of § 1252(a)(2)(B)(ii) bars the review of such
a final discretionary decision.
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Finally, the APA’s section providing for reviewability of agency action that is arbitrary,
capricious, or contrary to law cannot save Al-Haddad’s claims. Al-Haddad argues that
“Defendants’ argument that the Court lacks jurisdiction . . . ignores the issue of a decision found
to be arbitrary and capricious, and an abuse of agency discretion” pursuant to 5 U.S.C.
706(2)(A). Pl.’s Mem. Opp’n at 5. But § 706(2)(A) only applies if the Court has subject matter
jurisdiction to consider Al-Haddad’s APA claims. As discussed above, because 5 U.S.C. § 701
provides that the APA does not apply when a statute otherwise precludes jurisdiction, and
because the INA does preclude review of refugee resettlement denials, the Court does not have
subject matter jurisdiction under the APA and thus cannot consider Al-Haddad’s arguments
under § 706(2)(A).
V. CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss (ECF No. 7) is GRANTED,
and this case is DISMISSED. An order consistent with this Memorandum Opinion is separately
and contemporaneously issued.
Dated: January 16, 2019 RUDOLPH CONTRERAS
United States District Judge
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