Karam v. Garland ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BHAN W. KARAM,
Plaintiff
v. Civil Action No. 21-0915 (CKK)
MERRICK GARLAND, et al,
Defendants
MEMORANDUM OPINION
(September 30, 2022)
Plaintiff Bhan W. Karam is a citizen and resident of the United States, who seeks to compel
Defendants to render a decision regarding the eligibility of his mother and siblings to be admitted
to the United States as refugees. Plaintiff argues that Defendants have unreasonably delayed
consideration of his family’s eligibility to be admitted to the United States as refugees, and have
thereby violated the Administrative Procedure Act, Mandamus Act, and the Due Process Clause of
the Fifth Amendment.
Pending before the Court is Defendants’ [21] Motion to Dismiss or, in the alternative, for
Summary Judgment. Upon review of the pleadings, 1 the relevant legal authorities, and the record
as a whole, the Court concludes that it lacks jurisdiction to consider Plaintiff’s APA and Mandamus
Act claims, and that the Complaint fails to state a claim for relief under the Fifth Amendment.
Accordingly, the Court shall GRANT Defendants’ Motion to Dismiss the Complaint.
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The Court’s consideration has focused on: Defendants’ Motion to Dismiss or, in the alternative,
for Summary Judgment (“Defs.’ Mot.”), ECF No. 21; Plaintiff’s Opposition to Defendants’
Motion to Dismiss or, in the alternative, for Summary Judgment (“Pl.’s Opp’n”), ECF No. 23;
Defendants’ Reply in Support of Motion to Dismiss or, in the alternative, for Summary Judgment
(“Defs.’ Reply”), ECF No. 25; and the portions of Plaintiff’s Surreply (“Pl.’s Surreply”), ECF No.
26-1, which the Court granted leave to file, see ECF No. 31. In an exercise of its discretion, the
Court finds that holding oral argument in this action would not be of assistance in rendering a
decision. See LCvR 7(f).
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I. BACKGROUND
A. Refugee Admissions to the United States
The U.S. Refugee Admissions Program (“USRAP”) manages the admission of refugees to
the United States. See Declaration of Joanna Ruppel (“Ruppel Decl.”) ¶ 12, ECF No. 21-2. 2 The
Secretary of Homeland Security has delegated to U.S. Citizenship and Immigration Services
(“USCIS”) the authority to determine “eligibility for refugee status” under the INA. Id. The
International and Refugee Affairs Division (“IRAD”), a component of USCIS’s Refugee, Asylum,
and International Operations Directorate, is responsible for adjudicating all refugee cases. Id.
Pursuant to 8 U.S.C. § 1157(c)(1), “the Attorney General may, in the Attorney General’s
discretion and pursuant to such regulations as the Attorney General 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) (emphasis added). The USRAP has established three “processing priorities” to
identify individuals of “special humanitarian concern to the United States and who are eligible for
refugee resettlement consideration” Ruppel Decl. ¶ 13. One of these categories—“Priority 3” (or
“P-3”)—includes individuals “from designated nationalities granted access for purposes of
reunification with family members already in the United States.” Id. The assignment of a
“processing priority” does not determine the order in which cases will be processed; rather, once
a case is established as “eligible for access” under one of the three processing priorities, it will
undergo the same adjudicative process conducted by IRAD as all other eligible refugees. Id. ¶ 14.
2
See also The United States Refugee Admissions Program (USRAP) Consultation and Worldwide
Processing Priorities, USCIS, https://www.uscis.gov/humanitarian/refugees-and-asylum/usrap
(last visited September 30, 2022) (describing USRAP as an “interagency effort involving a number
of governmental and non-governmental partners both overseas and in the United States”).
2
The P-3 category “provides USRAP access” to prospective refugees who have certain
immediate family members in the United States. Id. ¶ 15. To proceed under P-3, an “anchor
relative”—who (a) resides in the United States and (b) entered the United States as a refugee—
must submit an Affidavit of Relationship on behalf of his or her overseas relative(s). See Defs.’
Mot. at 4; Ruppel. Decl. ¶ 17. The Affidavit of Relationship seeks information regarding the
“anchor relative” and his family members overseas seeking refugee status. Defs.’ Mot. at 4;
Ruppel. Decl. ¶ 17. 3 The Affidavit of Relationship is available as State Department Form DS-
7656, which provides in its instructions:
By completing this form you are claiming a relationship with family
members overseas in order to assist the U.S. Government in
determining whether those family members are qualified to apply
for admission to the United States under the U.S. Refugee
Admissions Program (USRAP). The [Affidavit of Relationship]
itself is not an application on behalf of your family member for
admission to the U.S. as a refugee under the USRAP or a petition
for any immigration benefit under U.S. law . . .
The D.S. 7656 provides a means for persons in the United States
who were admitted as refugees . . . to claim a relationship with
certain family members overseas and to assist the U.S. Department
of State in determining whether those family members are qualified
to apply for access to the USRAP for family reunification purposes.
See DS-7656, Affidavit of Relationship at 1, ECF No. 25-3.
Upon submission of the Affidavit of Relationship, the Refugee Access Verification Unit
(“RAVU”) verifies the relationship between the “anchor relative” in the United States and the
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“The Affidavit of Relationship is the form used to reunite refugees and asylees with close
relatives who are determined to be refugees but are outside the United States. The Affidavit of
Relationship records information about family relationships and must be completed in order to
begin the application process for relatives who may be eligible to enter the United States as
refugees through the U.S. Refugee Admissions Program.” USCIS, Refugees, Bringing Your
Family to the United States, https://www.uscis.gov/humanitarian/refugees-and-asylum/refugees
(last visited September 30, 2022).
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individuals overseas seeking refugee status. See Ruppel Decl. ¶ 17. If RAVU verifies the
relationship, the application is returned to the Refugee Processing Center, which then sends the
application to a Resettlement Support Center for “further processing, including scheduling for
interview.” Id.Adjudication of refugee applications must be conducted by “specially trained officers.”
Second Declaration of Joanna Ruppel (“2d Ruppel Decl.”) ¶ 8, ECF No. 25-1 (citing 8 U.S.C.
§ 207(f)). And interviews must be conducted “in person” before an “immigration officer.” Id. ¶
(citing 78 C.F.R. § 207.2(a)). IRAD currently employs approximately 110 Refugee Officers with
“primary responsibility for adjudicating refugee applicant requests for resettlement.” Ruppel
Decl. ¶ 18. Defendants indicate that “[n]ormally, each fiscal quarter, the State Department sends
to USCIS proposed refugee processing locations and dates for refugee processing trips and the
number of applicants to be interviewed per location.” Defs.’ Mot. at 4–5; Ruppel Decl. ¶ 19.
These trips are called “circuit rides.” Defs.’ Mot. at 5; Ruppel Decl. ¶ 19. During these “circuit
rides,” Refugee Officers “review the information that the Resettlement Support Center has
collected and the results of security screening processes and conduct in-person interviews with
each refugee applicant . . . before deciding whether to approve an applicant for classification as a
refugee.” Ruppel Decl. ¶ 20.
IRAD and the State Department determine the schedule and number of available interviews
during circuit rides based on “several factors, including available staffing, security risks, and travel
restrictions, such as those related to COVID-19.” Defs.’ Mot. at 5; Ruppel Decl. ¶ 21. These
planned circuit rides “can be disrupted and even cancelled” due to “war, civil unrest, and other
factors of concern to the refugee officers’ safety and security.” Ruppel Decl. ¶ 21. As pertinent
to the pending action, IRAD suspended all overseas refugee circuit rides in March 2020, including
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those in Ethiopia due to the COVID-19 pandemic. Id. ¶ 22. In the final quarter of the government’s
2021 fiscal year, IRAD resumed circuit rides “on a small scale.” Id. The location of circuit rides
is dependent on “USRAP processing priorities,” as well as “movement restrictions issued by local
governments, post-by-post restrictions issued by the Department of State, and the ability to safely
conduct in-person interviews while protecting the health of officers, Resettlement Support Center
staff, refugee applicants, and interpreters.” Id. ¶ 23.
IRAD did not conduct any circuit rides in Ethiopia in FY2020 or FY2021. Id. ¶ 28. It also
did not schedule any circuit rides to Ethiopia during the first two quarters of FY2022 due to
“continuing armed conflict and civil unrest in the country.” Id. Notably, as of November 5, 2021,
the Department of State ordered the departure of non-emergency U.S. government employees and
their family members from Ethiopia. Id.After conducting an interview and completing security background checks, USCIS
officers render a decision on a refugee application. If USCIS approves a refugee application,
IRAD notifies the State Department and the prospective refugee applicant is required to undergo
medical screening. Ruppel Decl. ¶ 24. Once the eligible person passes required medical
examinations, the Resettlement Support Center refers the case to an international organization
called the International Organization for Migration to coordinate transportation to the United
States. Id.B. Factual Background
Plaintiff Bhan W. Karam (“Plaintiff”) was born in South Sudan and admitted as a refugee
to the United States in 2014. Compl. ¶¶ 1, 25. He became a naturalized United States citizen in
2019. Id. ¶¶ 1, 15. In 2017, Plaintiff’s mother, Nyalieth Chuol Dech (“Ms. Dech”), her three
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younger children, and her stepdaughter fled South Sudan, eventually landing at the Jewi refugee
camp near Gambella, Ethiopia. Id. ¶ 2.
In December 2017, Plaintiff filed an Affidavit of Relationship with USRAP, initiating the
process of having Ms. Dech and her other children come to the United States under the “P-3”
refugee resettlement program. Id. ¶¶ 3, 28; Ruppel Decl. ¶ 26. Plaintiff and Ms. Dech completed
DNA testing in 2019, which confirmed that they are mother and son. Compl. ¶ 30.
Mr. Karam states that, since he submitted his Affidavit of Relationship in 2017, Ms. Dech’s
health has been declining and she has been unable to obtain adequate medical care at the refugee
camp. Id. ¶¶ 6, 36, 43, 44. Ms. Dech has been “experiencing problems with her legs” since 2015,
and suffers from “weakness and temporary paralysis that affects her ability to walk and do other
daily activities.” Id. ¶ 44. In addition, a civil war in Ethiopia has made “an already strained
situation in the refugee camp even worse”; the Complaint indicates that due to “security risks,”
people “are afraid to leave the camp,” Mr. Dech and her children are “lacking sufficient food.” Id.
¶¶ 7, 46. And the “children have not been able to attend school” due to the COVID-19 pandemic.
Id. ¶¶ 7, 45.
At the time Mr. Karam filed his Complaint on April 5, 2021, his family’s refugee eligibility
was still under review by RAVU. Compl. ¶ 10. However, Defendants indicate “that process has
now been completed and Plaintiff’s mother is awaiting an interview on her petition for admissions
to the United States as a P-3 refugee.” Defs.’ Mot. at 6; Ruppel Decl. ¶ 27 (“On June 16, 2021,
the RAVU Unit at IRAD verified the qualifying relationship and his mother[.]”).
In a status report dated August 31, 2022, Defendants indicate that a “pre-screening”
interview of Ms. Dech has been scheduled for September 1, 2022, which is a “necessary first step
to the actual refugee interview.” Defs.’ Status Report, ECF No. 29. Defendants further represent
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that, “[t]he actual refugee interview will be scheduled on the next circuit ride to Addis Ababa[,]
Ethiopia,” and that “the agency estimates that, assuming no extenuating circumstances . . . the
interview would be scheduled in the first quarter of FY2023 on or before December 31, 2022.” Id.Plaintiff then filed a status report on September 13, 2022, reporting that Ms. Dech reported
for an interview on September 9, 2022 and was told that “her children were not included in the
case.” Pl.’s Status Report, ECF No. 30. Based on this report, the Court directed Defendants to
file a response regarding the circumstances of this interview. Minute Order (Sept. 17, 2022).
Defendants submitted a status report on September 23, 2022, indicating: “Notwithstanding what
Ms. Dech was told on September 9, 2022, Ms. Dech will be allowed to include her children in her
application for refugee status. As previously represented to the Court, their interview will be
scheduled before December 31, 2022.” Defs.’ Status Report, ECF No. 33.
C. Procedural Background
Mr. Karam filed his Complaint in this action on April 5, 2021, asserting claims under the
APA (Count I), Mandamus Act (Count II), and the Due Process Clause of the Fifth Amendment
(Count IV). Compl. ¶¶ 48–62, 67–70. Plaintiff also asserts a standalone claim for “injunctive
relief” (Count III). Id. ¶¶ 63–66. Plaintiff claims that Defendants’ delay in considering his
family’s P-3 eligibility is “unreasonable” under the APA, 5 U.S.C. § 555(b). See id. ¶¶ 48–54. He
also seeks relief under the Mandamus Act, 28 U.S.C. § 1361, to compel Defendants to “timely
process and adjudicate the refugee admissions process.” See id. ¶¶ 55–62. And he claims that he
has a “fundamental right to the ‘integrity of [his] family unit” under the Fifth Amendment’s Due
Process Clause, of which the alleged delayed adjudication of their refugee application has deprived
him. See id. ¶¶ 67–70. Mr. Karam seeks an order compelling Defendants to “complete the refugee
admissions process for Ms. Dech and her children without further delay,” Id. ¶ 71.
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On November 22, 2021, Defendants filed their pending Motion to Dismiss or, in the
alternative, for Summary Judgment, which is ripe for the Court’s review.
II. LEGAL STANDARDS
A. Federal Rule of Civil Procedure 12(b)(1)
A court must dismiss a case when it lacks subject matter jurisdiction pursuant to Federal
Rule of Civil procedure 12(b)(1). To determine whether there is jurisdiction, the Court may
“consider the complaint supplemented by undisputed facts evidenced in the record, or the
complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Coal.
for Underground Expansion v. Mineta, 333 F. 3d 193, 198 (D.C. Cir. 2003) (citations omitted);
see also Jerome Stevens Pharm., Inc. v. Food & Drug Admin.,402 F.3d 1249, 1253 (D.C. Cir.
2005) (“[T]he district court may consider materials outside the pleadings in deciding whether to
grant a motion to dismiss for lack of jurisdiction.”).
In reviewing a motion to dismiss pursuant to Rule 12(b)(1), courts must accept as true all
factual allegations in the complaint and construe the complaint liberally, granting the plaintiff the
benefit of all inferences that can be drawn from the facts alleged. See Settles v. U.S. Parole
Comm'n, 429 F.3d 1098, 1106 (D.C. Cir. 2005). Despite the favorable inferences afforded to a
plaintiff on a motion to dismiss, it remains the plaintiff’s burden to prove subject matter jurisdiction
by a preponderance of the evidence. Am. Farm Bureau v. Environmental Prot. Agency, 121 F.
Supp. 2d 84, 90 (D.D.C. 2000). “Although a court must accept as true all factual allegations
contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), [a]
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.” Wright v. Foreign Serv.
Grievance Bd., 503 F. Supp. 2d 163, 170 (D.D.C. 2007) (internal citations and quotation marks
8
omitted) (quoting Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13–
14 (D.D.C. 2001), aff’d, 2008 WL 4068606 (D.C. Cir. Mar. 17, 2008)). A court need not accept
as true “a legal conclusion couched as a factual allegation” or an inference “unsupported by the
facts set out in the complaint.” Trudeau v. Fed. Trade Comm’n, 456 F.3d 178, 193 (D.C. Cir.
2006) (internal citation and quotation marks omitted).
B. Federal Rule of Civil Procedure 12(b)(6)
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a
complaint on the grounds that it “fail[s] to state a claim upon which relief can be granted.” Fed.
R. Civ. P. 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual
allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly,
550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. Courts “do not accept as true, however, the plaintiff’s legal
conclusions or inferences that are unsupported by the facts alleged.” Ralls Corp., 758 F.3d at 315.
III. DISCUSSION
For the following reasons, the Court concludes that it lacks jurisdiction to consider
Plaintiff’s APA and Mandamus Claims, and that Plaintiff fails to state a claim for relief under the
Due Process Clause of the Fifth Amendment. Accordingly, the Court shall GRANT Defendants’
Motion to Dismiss.
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A. The Court Lacks Subject-Matter Jurisdiction Over Plaintiff’s APA (Count I) and
Mandamus Act (Count II) Claims.
Plaintiff asserts that this Court has subject-matter jurisdiction over his claims under the
Declaratory Judgment Act, 28 U.S.C. § 2201, et seq.; the federal question statute, 28 U.S.C.
§ 1331; the Mandamus Act, 28 U.S.C. § 1361; the Administrative Procedure Act, 5 U.S.C.
§§ 555(b); and the Due Process Clause of the Fifth Amendment to the U.S. Constitution. Compl.
¶ 13. Neither the Declaratory Judgment Act nor the federal question statute supplies an
independent source of federal jurisdiction. Schilling v. Rogers, 363 U.S. 666, 678 (1960) (internal
citation omitted); C & E Servs., Inc. of Washington v. D.C. Water and Sewer Auth., 310 F.3d 197,
201 (D.C. Cir. 2002). “To consider a claim under the Declaratory Judgment Act, a federal court
must have jurisdiction under another federal statute.” Beshir v. Holder, 10 F. Supp. 3d 165, 171
(D.D.C. 2014) (citing Schilling, 363 U.S. at 678). Similarly, the federal question statute vests
federal courts with subject-matter jurisdiction only in cases “arising under” some other source of
federal law. See id.; 28 U.S.C. § 1331. A federal statute, like the Administrative Procedure Act
(“APA”), can provide the basis for federal question jurisdiction, as can a claim arising under the
Constitution.
The APA provides that federal courts shall “compel agency action unlawfully withheld or
unreasonably delayed.” 5 U.S.C. § 706(1). However, the APA does not apply where “agency
action is committed to agency discretion by law.” § 701(a). “[T]he only agency action that can
be compelled under the APA is action legally required . . . Thus, a claim under § 706(1) can
proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it
is required to take.” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 63–64 (2004) (emphasis
in original). In other words, the APA “does not provide a basis for jurisdiction over a claim that
an agency failed to take a discretionary action.” Beshir, 10 F. Supp. 3d at 171.
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Plaintiff also cites the Mandamus Act as a source of subject-matter jurisdiction, which
provides federal courts with jurisdiction to “compel an officer or employee of the U.S. or any
agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. However, as with the
APA, mandamus is only appropriate if there is a “clear nondiscretionary duty.” Pittston Coal Grp.
v. Sebben, 488 U.S. 105, 121 (1988) (quoting Heckler v. Ringer, 466 U.S. 602, 616 (1984)). “[T]he
standards for obtaining relief [through mandamus and through the APA] are essentially the same.”
Viet. Veterans of Am. v. Shinseki, 599 F.3d 654, 659 n. 6 (D.C. Cir. 2010) (citing In re Core
Commc’ns Inc., 531 F.3d 849, 855 (D.C. Cir. 2008)).
In addition, the APA does not apply (and therefore supplies no basis for federal question
jurisdiction) if another statute “precludes judicial review.” 5 U.S.C. § 701(a). The Immigration
and Nationality Act contains the following “jurisdiction-stripping provision”: “Notwithstanding
any other provision of law,” no court shall have jurisdiction to review “any . . . 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[.]” 8 U.S.C. § 1252(a)(2)(B)(ii). “This jurisdiction-stripping provision dovetails with the
jurisdictional limitations of the APA: the APA does not provide a basis for jurisdiction over
discretionary agency action, and the INA prohibits jurisdiction over discretionary agency action.”
Beshir, 10 F. Supp. 3d at 171.
Here, Defendants contend that the Court lacks jurisdiction because the “pace” of reviewing
whether Plaintiff’s family members are eligible for refugee status is “discretionary.” Defs.’ Mot.
at 14–15. Although the Court has not identified any legal authority addressing refugee status
specifically, other courts in this and other jurisdictions have addressed the question of “whether
the APA or the Mandamus Act provides a basis for jurisdiction—and whether the INA precludes
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jurisdiction—over claims that USCIS unreasonably delayed the adjudication of an adjustment [of
status] application.” Beshir, 10 F. Supp. 3d at 172 (collecting cases). Courts are divided on this
question. See, e.g., id. (concluding that court lacks jurisdiction over “pace of processing” claim);
Singh v. Napolitano, 710 F. Supp. 2d 123 (D.D.C. 2010) (same); Orlov v. Howard, 523 F. Supp.
2d 30 (D.D.C. 2007) (same); Tao Luo v. Keisler, 521 F. Supp. 2d 72 (D.D.C. 2007) (same). But
see Geneme v. Holder, 935 F. Supp. 2d 184 (D.D.C. 2013) (finding subject-matter jurisdiction
exists); Liu v. Novak, 509 F. Supp. 2d 1 (D.D.C. 2007) (same). The D.C. Circuit has not yet opined
on the question of whether the “pace of processing” such immigration benefits is “discretionary.”
Beshir, 10 F. Supp. 3d at 172.
Examining these decisions carefully, the Court finds the analysis and conclusion of the first
group to be more persuasive. As set forth below, the language of the portion of the INA addressing
the admission of refugees, coupled with the “absence of a congressionally mandated timeline”
supports the conclusion that the pace of considering Plaintiff’s relatives; eligibility to be refugees
is “discretionary,” which precludes judicial review under the APA or Mandamus Act. See Beshir,
10 F. Supp. 3d at 173–77.
First, Defendants point to the language of § 1157(c) to support their argument that
consideration of refugee status is a “discretionary function” which strips the Court of jurisdiction
under the APA. That section provides:
(c) Admission by Attorney General of refugees; criteria;
admission status of spouse or child; applicability of other
statutory requirements; termination of refugee status of alien,
spouse or child
(1) Subject to the numerical limitations established pursuant to
subsections (a) and (b), the Attorney General may, in the Attorney
General’s discretion and pursuant to such regulations as the
Attorney General may prescribe, admit any refugee who is not
firmly resettled in any foreign country, is determined to be of special
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humanitarian concern to the United States, and is admissible (except
as otherwise provided under paragraph (3)) as an immigrant under
this chapter.
8 U.S.C. § 1157(c)(1) (emphasis added). Defendants argue that because the admission of refugees
is made “discretionary” by the explicit language of § 1157(c)(1), an action challenging the pace of
adjudicating refugee admissions is barred by § 1252(a)(2)(B)(ii) and therefore the Court lacks
jurisdiction under the APA. Defs.’ Mot. at 16–17.
Confronting similar statutory language, the court in Beshir concluded that it lacked
jurisdiction to consider a claim for unreasonable delay under the APA and Mandamus Act by a
plaintiff who challenged a two-year delay in adjusting his status. There, the court examined section
1159(b) of the INA, which provides: “[t]he Secretary of Homeland Security or the Attorney
General, in the Secretary’s or the Attorney General’s discretion and under such regulations as the
Secretary or the Attorney General may prescribe, may adjust . . . the status of any alien granted
asylum.” Beshir, 10 F. Supp. 3d at 173 (emphasis added). The court found that this language
made “clear that the statutes grant discretion not only over the decision to adjust an alien’s status
but also over the promulgation of regulations to create the process by which an alien's status may
be adjusted.” Id.
Plaintiff, however, cites to other decisions in which courts have concluded that because the
“pace of adjudication” is not specifically mentioned as part of the “discretion” conferred by
§ 1157(c)(1), the pace of determining refugee eligibility is “not discretionary.” Pl.’s Opp’n at 12;
see, e.g., Geneme, 935 F. Supp. 2d at 1; Liu, 509 F. Supp. 2d at 7–9 (finding that the INA does not
specifically address the pace of application processing; and so pace is not discretionary). He cites
these cases for the proposition that there “exists a non-discretionary duty to act on and process the
application.” Pl.’s Opp’n at 12. But this argument appears to be premised on Plaintiff’s belief that
consideration of his family’s refugee status is “on hold.” Pl.’s Opp’n at 13. The present record
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belies this claim. Defendants have reported that a circuit ride to Ethiopia—and with it, Plaintiff’s
interview—will occur by the end of this year.
The Court is more persuaded by the reasoning of Beshir, the case relied upon by
Defendants. There, the court reasoned that “[g]ranting the Attorney General and the Secretary the
discretion to promulgate regulations governing the process of adjudication necessarily includes a
grant of discretion over the pace of adjudication.” Beshir, 10 F. Supp. 3d at 174. “Otherwise, the
grant of discretion would be illusory, given that courts could drastically alter the regulations
prescribed by dictating what pace of adjudication the regulations must permit.” Id. (quoting
Labaneya v. USCIS, 965 F. Supp. 2d 823, 829 (E.D. Mich. 2013)); see also Namarra v. Mayorkas,
924 F. Supp. 2d 1058, 1064 (D. Minn. 2013) (“[C]ommit[ting] the adjustment decision itself, as
well as the authority to promulgate regulations governing the adjudication process, to the
Secretary’s discretion, but exclud[ing] from the Secretary's discretion the time required to arrive
at the adjustment decision, merely puts form over substance.”). This reasoning applies with equal
force to the provision at issue here—which confers upon the Attorney General “in Attorney
General’s discretion and pursuant to such regulations as the Attorney General may prescribe” to
“admit any refugee.” § 1157(c)(1). The “express grant” of discretionary authority to admit
refugees and promulgate appropriate regulations would be “meaningless” if the Court “could
impose . . . some judicially-created time requirement.” Namarra, 924 F. Supp. 2d at 1064. In
other words, the “statutory grant of discretion over how” to admit refugees “necessarily carries
with it the discretion to determine when those adjustment decisions will be made.” Id. (citing
Singh, 710 F. Supp. 2d at 129–30).
The Court in Beshir also noted that the lack of a “congressionally-imposed deadline or
timeframe to complete the adjudication of adjustment applications supports the conclusion that the
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pace of adjudication is discretionary and thus not reviewable.” Beshir, 10 F. Supp. 3d at 176. The
same is true here; § 1157(c) lacks any timeframe within which applications seeking refugee status
must be adjudicated. See Defs’ Mot. at 16. Plaintiff concedes that there is “no explicit statutory
timeline.” Pl.’s Opp’n at 16.
Based on the Court’s conclusion that the “pace of adjudication” is discretionary, neither
the APA nor the Mandamus Act provides a basis for this Court to assert jurisdiction over Plaintiff’s
unreasonable delay claim. See, e.g., S. Utah Wilderness Alliance, 542 U.S. at 63–64 (holding that
a court cannot, under the APA, compel an agency to act unless there is a nondiscretionary, specific
act—i.e., a discrete action that the agency is required to take); Pittston Coal Group, 488 U.S. at
121 (holding that mandamus is only appropriate where defendant owes petitioner “a clear
nondiscretionary duty”). Moreover, other courts have concluded that the pace of adjudication is a
“decision or action” falling within the INA’s jurisdiction-stripping provision, § 1252(a)(2)(B)
(precluding judicial review of any “decision or action” for which the authority “under this
subchapter” is “in the discretion” of the Attorney General or Secretary). See Beshir, 10 F. Supp.
3d at 174; Safadi v. Howard, 466 F. Supp. 2d 696, 699 (E.D. Va. 2006). In sum, the INA’s
jurisdiction-stripping provision applies to the pace of adjudication, precluding Plaintiff’s
unreasonable delay claim from judicial review.
Because the Court concludes that the pace of considering whether Plaintiff’s family
members are eligible to be refugees falls within the agency’s discretion and therefore is precluded
from judicial review by the APA, the Court concludes that it lacks jurisdiction over Plaintiff’s
Mandamus and APA claims. Accordingly, the Court does not reach Defendants’ additional
jurisdictional challenges, or its arguments that Plaintiff’s unreasonable delay claims should be
dismissed under Rule 12(b)(6).
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B. Plaintiff Fails to State a Claim for Violation of Due Process Under the Fifth
Amendment (Count IV).
Plaintiff separately asserts a claim under the Fifth Amendment’s Due Process Clause. He
claims that he “has a fundamental right” to the “integrity of [his] family unit,” which has been
violated by Defendants’ “unreasonable delay in adjudicating” his family members’ refugee
applications. Compl. ¶¶ 68–69. The Court shall also dismiss this claim because Plaintiff has failed
to state a plausible claim for relief under the Due Process Clause.
To state a due process claim, a plaintiff must plausibly allege that “there exists a liberty or
property interest of which plaintiff has been deprived,” and that “the procedures the government
provided were constitutionally inadequate.” Ghadami v. Dep’t of Homeland Security, Civil Action
No. 19-397(ABJ), 2020 WL 1308376, at *10 (D.D.C. Mar. 19, 2020) (citing Swarthout v. Cooke,
562 U.S. 216, 219 (2011) (per curiam); Jafarzadeh v. Nielsen, 321 F. Supp. 3d 19, 47 (D.D.C.
2018)).
Defendants argue that Plaintiff has failed to identify the requisite liberty interest, noting
that “[n]o court has ever found that a United States citizen has a liberty interest in living with their
parent in the United States.” Defs.’ Mot. at 27. Plaintiff does not respond to this argument in his
Opposition—notably, the Opposition contains no mention of “due process” or the Constitution.
By failing to address this argument, he concedes that he failed to identify a cognizable liberty
interest to support his “due process” claim. See, e.g., Ali v. D.C. Court Services, 538 F. Supp. 2d
157 (D.D.C. 2008) (“If a plaintiff . . . files an opposition to a motion to dismiss addressing only
certain arguments raised by the defendant, a court may treat those arguments that the plaintiff
failed to address as conceded.”).
In any event, the Court has not identified any legal authority supporting the proposition
that the due process clause “protects all familial relationships, including the relationship of an adult
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child with [his] parent.” Ghadami, 2020 WL 1308376, at *10; see also Movimiento Democracia,
Inc. v. Chertoff, 417 F. Supp. 2d 1350, 1353 (S.D. Fla. 2006) (“[T]here is no statutory or
constitutional right to familial association with a person trying to immigrate to the United States.”).
Rather, the “D.C. Circuit does not recognize a relationship protected under the due process clause
where the child is an independent adult.” Id. (citing Butera v. District of Columbia, 235 F.3d 637,
656 (D.C. Cir. 2001)). Based on Plaintiff’s failure to identify a protected liberty interest in support
of his claim, the Court shall dismiss his constitutional claim.
C. Plaintiff’s Standalone Claim for “Injunctive Relief” (Count III) Shall Be Dismissed.
Finally, Count III of Plaintiff’s Complaint contains as a standalone claim: “Request for
Injunctive Relief,” asserting that Defendants have a “clear, ministerial, and nondiscretionary duty
to make a determination about whether Ms. Dech and her children may be admitted as refugees.”
Compl. ¶ 64 (citing 8 U.S.C. § 1157(c)). “Injunctive relief . . . is not a freestanding cause of action,
but rather—as its moniker makes clear—a form of relief to redress the other claims asserted by
Plaintiff.” Base One Techs., Inc. v. Ali, 78 F. Supp. 3d 186, 199 (D.D.C. 2015); see also
Guttenberg v. Emery, 41 F. Supp. 3d 61, 69 (D.D.C. 2014) (“Count II of plaintiffs’ amended
complaint is not a separate cause of action or claim; rather, it is a request that the Court grant a
particular form of relief (an injunction)[.]”). Accordingly, the Court shall also dismiss Count III.
See Base One, 78 F. Supp. 3d at 199 (dismissing standalone claim for “injunctive relief”).
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IV. CONCLUSION
For the foregoing reasons, the Court shall GRANT Defendants’ [21] Motion to Dismiss or,
in the alternative, for Summary Judgment. This case shall be dismissed. An appropriate Order
accompanies this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
Date: September 30, 2022
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