Jafarzadeh v. Duke , 270 F. Supp. 3d 296 ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RAZEYEH JAFARZADEH &
MANOUCHEHR JAFARZADEH,
Plaintiffs,
v. Civil Action No. 16-1385 (JDB)
ELAINE DUKE, Acting Secretary, U.S.
Department of Homeland Security, et al.1
Defendants.
MEMORANDUM OPINION
Plaintiff Manouchehr Jafardzadeh is a non-citizen who is lawfully present in the United
States and who applied for an adjustment of status to become a lawful permanent resident. His
U.S. citizen daughter, Razeyeh Jafardzadeh, filed the corresponding application for Manouchehr
to become a lawful permanent resident as an immediate relative of a U.S. citizen. The United
States Citizenship and Immigration Service (USCIS), the agency within the Department of
Homeland Security (DHS) that adjudicates these applications, granted her application but denied
his. Although he may only challenge the ultimate determination of his application through
administrative proceedings and then an appeal to the circuit court, he instead seeks to challenge
the process by which USCIS adjudicated his initial application through a suit in this Court. He
alleges that USCIS employs a procedure for reviewing certain applications known as the
“Controlled Application Review and Resolution Program,” and that USCIS’s use of this process
without promulgating a notice-and-comment rule violates the Administrative Procedure Act and
1
Elaine Duke, Acting Secretary of Homeland Security, Christopher A. Wray, Director of the Federal Bureau
of Investigation, and Jefferson B. Sessions, Attorney General, have been automatically substituted for their
predecessors pursuant to Federal Rule of Civil Procedure 25(d).
1
his right to procedural due process under the Fifth Amendment. DHS, on the other hand, mantains
that because USCIS has already made a determination and now an immigration judge will make a
new determination on his application through the administrative process, the claims against USCIS
are either moot or unripe. DHS further argues that even if Manouchehr’s claims are not moot or
unripe, they must be dismissed because he has failed to state a claim under the Immigration and
Nationality Act, the Administrative Procedure Act, or the Constitution. For the reasons explained
below, the Court will grant in part and deny in part the motion to dismiss.
BACKGROUND
The facts that follow are as stated in plaintiffs’ complaint, which at this stage, the Court
accepts as true. Plaintiff Manouchehr is a citizen of Iran who has lawfully resided in the United
States since 1979. Compl. [ECF No. 1] ¶ 16. His daughter, plaintiff Razeyeh, is a U.S. citizen.
Id. ¶ 1. In January 2010, plaintiffs respectively filed the appropriate forms for Manouchehr to
adjust his status to that of a lawful permanent resident: Razeyeh filed a Petition for Alien Relative
(Form I-130) and Manouchehr filed a concurrent Application to Register Permanent Residence or
Adjust Status (Form I-485). Id. ¶¶ 1, 7, 19.
Since these applications were filed, USCIS has twice interviewed Manouchehr, once in
2011 and once in 2014. Id. ¶ 19. He has also been contacted by the Federal Bureau of Investigation
“multiple times,” most recently in 2014. Id. The FBI has, allegedly, conveyed that if Manouchehr
became an informant on the Iranian community in the United States, “the FBI would use its
influence to remove roadblocks hindering the adjudication of his applications” to become a lawful
permanent resident. Id. ¶¶ 19–22. Manouchehr has consistently declined to act as an informant
for the FBI. Id. ¶ 22.
2
For six years after plaintiffs had submitted their applications, but before they filed this
lawsuit, USCIS neither approved nor denied the applications. Plaintiffs allege that this is because
their applications were subject to a secret, alternate process for adjudicating applications from
certain immigrants, known as the Controlled Application Review and Resolution Program
(CARRP). Plaintiffs allege that “in April 2008, USCIS created CARRP, an agency-wide policy
for identifying, processing, and adjudicating applications for certain immigration benefits” in
secret, and it only “[came] to light as a result of” documents released pursuant to Freedom of
Information Act requests. Id. ¶ 25. They allege that “once an application is selected for processing
under CARRP, USCIS removes the application from the agency’s routine adjudication track and
places it on a separate CARRP track.” Id. ¶ 29. The applications on this separate track “are
reviewed under protocols that lack any authority or foundation in statute or regulation” and
“CARRP mandates denial or perpetual delay” of those applications, “regardless of the applicant’s
statutory eligibility for a particular immigration benefit.” Id.
Plaintiffs further contend that applications are selected for inclusion in CARRP based on
whether the applicant is a “known or suspected terrorist,” which in turn is based on whether the
individual is listed in the “Terrorism Screening Database” or has a “link to . . . an activity,
individual or organization that has engaged in terrorist activity or been a member of a terrorist
organization.” Id. ¶¶ 26–29 (internal quotation marks omitted). The “Terrorism Screening
Database” is, according to plaintiffs, maintained by the FBI, and that agency (as well as other
intelligence agencies) is authorized to add individuals to the database. Id. ¶ 32. Pursuant to
CARRP, once an individual is included in the Terrorism Screening Database, USCIS field officers
are prohibited from granting that immigration application, “even if the applicant has satisfied all
statutory and regulatory criteria.” Id. ¶ 33. Thus, plaintiffs argue, although the immigration laws
3
grant the Secretary of Homeland Security the authority to adjudicate immigration applications,
CARRP unlawfully delegates that authority to the FBI and to other agencies that add individuals
to the Terrorism Screening Database. Further, plaintiffs allege that CARRP requires USCIS to
deny applications on national-security related grounds that are far broader than the ones articulated
in the governing statute. Id. ¶ 41 (citing 8 U.S.C. § 1182(a)(3)).
In June 2016, more than six years after plaintiffs filed their applications with DHS, they
filed this action. (The suit names several government officials as defendants. For simplicity, the
Court will refer to the defendants as DHS, USCIS, or the government.) The suit, styled as one for
mandamus relief, seeks an order under the Immigration and Nationality Act (INA) and the
Administrative Procedure Act (APA) requiring USCIS to adjudicate the applications after six years
of delay (Counts I, II, and III). See id. ¶¶ 42–52. It also asserts that CARRP’s delegation of
immigration decisions to other agencies besides USCIS violates the INA, and therefore seeks
adjudication of the applications without the application of CARRP (Count II). Id. ¶¶ 47–50. It
further alleges that DHS’s refusal to notify Manouchehr that his application was subject to CARRP
violates his procedural due process rights under the Fifth Amendment (Count IV). Id. ¶¶ 53–55.
Finally, the suit contends that CARRP is a “rule” and therefore must be promulgated in accordance
with the APA’s notice-and-comment requirements under 5 U.S.C. § 553 (Count V), and the
application of CARRP to Manouchehr is arbitrary and capricious under 5 U.S.C. § 706 (Count III).
On December 2, 2016 USCIS granted Razeyeh’s petition, thereby recognizing
Manouchehr as her immediate relative. See Collett Decl. [ECF No. 12-1] ¶ 3; Pls.’ 1st Supp. Br.
[ECF No. 21] at 1. But on February 10, 2017, USCIS denied Manouchehr’s application for
adjustment of status. See Collett Decl. ¶ 4; Pls.’ Opp’n [ECF No. 15] at 7. The government argues
that because plaintiffs seek an order requiring USCIS to act on their applications, their complaint
4
is now moot. See Defs.’ Mot. to Dismiss [ECF No. 12] at 7–8. DHS also asserts that the ultimate
relief that plaintiffs seek is not a particular procedure, but rather a different ruling on Manouchehr’s
application. This relief, DHS argues, can only be obtained through the administrative process
before an immigration judge and the Board of Immigration Appeals, followed by appeal to the
appropriate circuit court, and thus the claims are also unripe. See Defs.’ Reply Br. [ECF No. 17]
at 5–8 & n.1. DHS also contends that plaintiffs have failed to state a claim under the INA because
that act “does not create a private right of action to challenge the length of time or process USCIS
takes to adjudicate I-130 and I-485 petitions.” Defs.’ Mot. to Dismiss at 8. Moreover, because
CARRP is not a final agency action as defined by 5 U.S.C. § 704, plaintiffs have failed to state a
claim under the APA. See id. at 10 (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882
(1990)). And, finally, the government asserts that plaintiffs here failed to state a due process claim
because Manouchehr cannot identify any constitutionally protected property or liberty interest in
his adjustment of status application. Id. at 12.
After the motion to dismiss was fully briefed, the Court ordered the parties to file
supplemental memoranda to provide additional information and legal arguments. See Order, July
21, 2017 [ECF No. 18]. Plaintiffs’ supplemental brief confirms that Razeyeh does not request any
further action with respect to her application but instead asserts that she is injured by USCIS’s
unlawful procedures in adjudicating Manouchehr’s application. Pls.’ 1st Supp. Br. at 1–2. It also
confirms that removal proceedings are currently pending against Manouchehr before an
immigration judge, and therefore asks that James McHenry, Acting Director of the Department of
Justice’s Executive Office of Immigration Review (the office responsible for immigration judges
and the Board of Immigration Appeals), be added as a defendant. Id. at 9. The government’s
supplemental brief confirms that it believes that Manouchehr cannot assert his statutory or
5
constitutional claims before the immigration judge or the Board of Immigration Appeals, and may
only raise them to the circuit court based on the existing administrative record. See Defs.’ 1st
Supp. Br. [ECF No. 20] at 7. The parties also identified the handful of other cases considering
CARRP. See Pls.’ 1st Supp. Br. at 3–8; Defs.’ 1st Supp. Br. at 4–7 & Ex. 2 [ECF No. 20-2]; Defs.’
Notice of Supp. Authority [ECF No. 24].
The Court then ordered a second round of supplemental memoranda to address what affect,
if any, the class certifications in a recent case on a similar topic, Wagafe v. Trump, No. C17-0094-
RAJ, 2017 WL 2671254 (W.D. Wa. June 21, 2017), might have on their respective positions. See
Minute Order, July 21, 2017. The parties both took the position that neither plaintiff here is a
member of the certified classes in that case: Razeyeh because she is a U.S. citizen, and Manouchehr
because his application was adjudicated before the applicable date for the class that was certified.
See Pls.’ 2nd Supp. Br. [ECF No. 22]; Defs.’ 2nd Supp. Br. [ECF No. 23]. The Court therefore
assumes without deciding that plaintiffs are not members of those classes and therefore that the
proceedings in that case have no bearing on the issues before the Court in this matter.
LEGAL STANDARD
The government has moved to dismiss for lack of subject matter jurisdiction and failure to
state a claim. See Fed. R. Civ. P. 12(b)(1), (b)(6). When considering a motion to dismiss, a court
presumes the truth of the complaint’s factual allegations. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). However, when evaluating either grounds for dismissal, a court is “not bound to
accept as true a legal conclusion couched as a factual allegation.” Id. (internal quotation marks
omitted) (failure to state a claim).
The party seeking to invoke the jurisdiction of the federal court bears the burden of
establishing the court’s jurisdiction. See U.S. Ecology, Inc. v. U.S. Dep’t of the Interior, 231 F.3d
6
20, 24 (D.C. Cir. 2000). But plaintiffs are not the only ones with jurisdictional responsibilities;
the court also has an “affirmative obligation to ensure that it is acting within the scope of its . . .
authority.” Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C.
2001). Thus, “‘[p]laintiff’s factual allegations . . . 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.” Id. at 13–14 (alteration
in original) (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure §
1350 (2d ed. 1987)).
When evaluating a motion to dismiss for failure to state a claim, the court asks whether the
facts alleged suffice “to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (internal quotation marks omitted). “The complaint should not be dismissed
unless plaintiffs can prove no set of facts in support of their claim which would entitle them to
relief.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Thus “the
complaint is construed liberally in the plaintiffs’ favor.” Id. A court “must not make any judgment
about the probability of the plaintiffs’ success,” “must assume all allegations in the complaint are
true (even if doubtful in fact)” and “must give the plaintiff the benefit of all reasonable inferences
derived from the facts alleged.” Akteiselskabet AF 21, Nov. 2001 v. Fame Jeans, Inc., 525 F.3d
8, 17 (D.C. Cir. 2008).
ANALYSIS
I. JURISDICTION
Federal courts are limited to deciding “actual cases or controversies.” Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1547 (2016) (internal quotation marks omitted) (citing U.S. Const. Art.
III § 2). “Standing to sue is a doctrine rooted in the traditional understanding of a case or
controversy.” Id. The twin doctrines of mootness and ripeness can be described as “standing set
7
in a time frame: The requisite personal interest that must exist at the commencement of litigation
(standing) must continue throughout its existence (mootness).” Arizonans for Official English v.
Arizona, 520 U.S. 43, 68 n.22 (1997) (internal quotation marks omitted); see also Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189–94 (2000).
A. Mootness
The government’s primary argument is that this case must be dismissed because it’s moot.
See Defs.’ Reply Br. at 1. The government is partially correct.
A case is considered moot “when the issues presented are no longer live or the parties lack
a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969)
(internal quotation marks omitted). Because federal courts are of limited jurisdiction, a court “has
no authority to give opinions upon moot questions.” Church of Scientology of Cal. v. United
States, 506 U.S. 9, 12 (1992) (internal quotation marks omitted).
To the extent that the relief the plaintiffs seek is an order requiring USCIS to act on their
applications, then the government is certainly right: those claims are moot. USCIS has now
adjudicated the plaintiffs’ applications (presumably prompted by this lawsuit) and no further relief
is available on that front.
However, the government is incorrect that this is the only relief that plaintiffs seek. The
government argues that because the complaint is “styled in the nature of a writ of mandamus” and
“sought to remedy what they considered an unreasonable delay in adjudicating their immigration
applications,” now that the applications have been adjudicated the case is over. See Defs.’ Reply
Br. at 1. But the text of the complaint is not so limited. To the extent that there is ambiguity about
the relief that plaintiffs seek, a court must construe that complaint liberally in plaintiffs’ favor. See
Kowal, 16 F.3d at 1276. It is clear that Counts I, II, and III of the complaint here seek in part to
8
compel USCIS to render a decision on plaintiffs’ applications without further delay. See Compl.
¶ 45 (in Count I, stating “Defendants owe Plaintiffs the duty to act upon their petition and
application for adjustment of status”); ¶ 46 (in Count I, stating “[n]o other remedy exists for
plaintiffs to resolve Defendants’ unconscionable delay”); ¶ 50 (in Count II, stating “CARRP[] . . .
[is] responsible for the unreasonable delay and/or unlawful constructive denial of Plaintiff
Manouchehr’s application”); ¶ 52 (in Count III, stating “[t]he unreasonable delay and constructive
denial of Plaintiff Manouchehr’s application” is arbitrary and capricious under the APA). It
appears that the basis for these claims is the Court’s mandamus power (Count I) and the INA
(Count II).
But Count II also alleges that CARRP “cedes the Department of Homeland Security’s
exclusive statutory authority” regarding immigration applications to other federal agencies that
have “no statutory authority over citizenship or immigration matters.” Id. ¶ 49. This raises a
substantive claim regarding the legality of utilizing CARRP, not just a claim that USCIS must act
promptly. Count III likewise argues that CARRP is arbitrary and capricious under the APA
because it is “not in accordance with the law, is contrary to the Constitution, and abdicates
responsibility to apply . . . the immigration laws. The decision denying Plaintiff Manouchehr’s
application for adjustment of status therefore violates the [APA], 5 U.S.C. § 706.” Id. ¶ 52. This,
too, is a substantive claim that seeks relief beyond just a timely ruling from USCIS.
Counts IV and V raise claims about CARRP’s lawfulness, entirely separate from USCIS’s
delay in adjudicating plaintiffs’ applications. Count IV asserts that USCIS’s “refusal to give
Plaintiff Manouchehr notice that his application for adjustment of status was subject to CARRP . . .
and any process for Plaintiffs to challenge that classification, violates the Due Process Clause of
the Fifth Amendment.” Id. ¶ 55. Count V contends that CARRP is a substantive rule as defined
9
by the APA, and therefore must be promulgated in accordance with notice-and-comment
rulemaking procedures. Id. ¶¶ 56–59. Nothing in these two claims rests on USCIS’s initial delay
in adjudicating plaintiffs’ applications, and therefore these claims are not mooted by USCIS’s
decisions in December and February.
Hence, Count I will be dismissed as moot in its entirety. Counts II and III will be dismissed
as moot only insofar as they request that USCIS adjudicate plaintiffs’ applications.2 To the extent
that Counts II and III request relief other than USCIS’s prompt action on their initial applications—
e.g., a declaratory judgment that CARRP is unlawful and a remand for USCIS to reconsider
Manouchehr’s application without applying CARRP—the motion to dismiss for mootness will be
denied. The motion to dismiss Counts IV and V for mootness will likewise also be denied.3
B. Ripeness, Finality & Exhaustion
DHS also argues, in the alternative, that plaintiffs’ claims are not ripe. It contends that
although plaintiffs’ claims are framed as a challenge to the CARRP process, in reality the relief
that they seek is that Manouchehr’s adjustment of status application be granted. See Defs.’ Reply
Br. at 4–5. That relief can only be obtained through the administrative process followed by an
appeal to the appropriate circuit court, which is still ongoing. Id. Thus, the government argues,
the ultimate decision on Manouchehr’s application to become a permanent resident is not yet ripe
2
It is possible that plaintiffs’ moot claims are still reviewable under the doctrines of voluntary cessation or
capable of repetition yet evading review. See Friends of the Earth, 528 U.S. at 189–91 (describing the doctrines).
However, plaintiffs have not raised these arguments.
3
The government does not separately address whether Razeyeh’s claims (as distinct from Manouchehr’s) are
moot because her petition was granted even though his application was denied. Plaintiffs, on the other hand, argue
that her claims are not moot because she has an independent injury resulting from her immediate family member’s
application being adjudicated in an unlawful manner. See Pls.’ Opp’n at 13–14 (citing Bangura v. Hansen, 434 F.3d
487, 499 (6th Cir. 2006)); cf. Escobar v. INS, 896 F.2d 564, 569 (D.C. Cir. 1990) (noting that U.S. citizen’s rights can
be implicated when immediate family is denied immigration benefits). However, because the Court determines that
Manouchehr has standing, the Court not need decide whether Razeyeh does as well. See Horne v. Flores, 557 U.S.
433, 446 (2009) (citing Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 264 & n.9 (1977)) (“Because
[one plaintiff] clearly has standing to challenge the lower courts’ decision, we need not consider whether [the other
plaintiffs] also have standing to do so.”).
10
for judicial review, and when it becomes ripe, the only court with jurisdiction to review it will be
the relevant circuit court. See id. at 5–7 & n.1.
It is well established that an individual may not challenge a denial of an adjustment of
status to that of a lawful permanent resident in district court while removal proceedings are
pending. See Randall v. Meese, 854 F.2d 472, 481–82 (D.C. Cir. 1988). There are jurisdictional
and non-jurisdictional reasons why this rule is appropriate. Article III standing demands that a
claim be ripe before a court can consider it, that is, that the injury-in-fact have already occurred or
be sufficiently imminent. See Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2342–43
(2014); MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127–28 & nn.7–8 (2007) (citing Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). In addition to the constitutional dimension
of ripeness, under the APA an agency action is “subject to judicial review only when it is either
(1) made reviewable by statute; or (2) a ‘final’ action ‘for which there is no other adequate remedy
in a court.’” Cabaccang v. U.S. Citizenship and Immigration Servs., 627 F.3d 1313, 1315 (9th
Cir. 2010) (quoting 5 U.S.C. § 704). Finality’s close cousin, exhaustion, likewise requires that
“[w]here relief is available from an administrative agency, the plaintiff is ordinarily required to
pursue that avenue of redress before proceeding to the courts.” Id. at 1316 (internal quotation
marks omitted) (quoting Reiter v. Cooper, 507 U.S. 258, 269 (1993)).
In the specific administrative scheme relevant here, the statute and its implementing
regulations identify the proper avenue for redress. The parties do not dispute that removal
proceedings are pending against Manouchehr before an immigration judge. See Collett Decl. ¶ 5;
Feb. 10, 2017, Notice to Appear [ECF No. 17-1]; Pls.’ 1st Supp. Br. at 3. Therefore Manouchehr
may pursue his application for adjustment of status before an immigration judge within the
Department of Justice’s Executive Office for Immigration Review. See 8 C.F.R. §§
111240.1(a)(1)(ii), 1245.2(a)(1)(i). If the immigration judge denies his application, he may appeal
to another administrative body, the Board of Immigration Appeals. See 8 C.F.R. §§ 1003.1(b),
1003.3(a). And if that decision is adverse, he may appeal it (on limited grounds) to the relevant
circuit court of appeals. See 8 U.S.C. § 1252(b)(2) (exclusive review in courts of appeals), (a)(2)
(certain matters not subject to judicial review). He is not entitled, at any stage in this process, to
review of his application in any district court. See id. § 1252(a)(5), (b)(2). And because the
decision whether to grant an adjustment of status to that of a lawful permanent resident is a
discretionary one, he is not entitled to have any court review that exercise of discretion. See id.
§ 1252(a)(2)(B)(i).
Thus, there can be no dispute that if what the plaintiffs seek is review of USCIS’s denial
of Manouchehr’s application, then this Court is not empowered to grant them any relief. The
agency decision is not final, their claims are not ripe, they have not exhausted the administrative
review process, this Court is not the proper forum to review the final agency decision, and no court
is empowered to review a discretionary decision. However, USCIS’s ruling on Manouchehr’s
application is not only what plaintiffs challenge, and the relief that they seek is not merely the
approval of his application. Rather, they argue that USCIS’s procedure in adjudicating his
application was unlawful, and the relief that they seek is for USCIS to reconsider his application,
this time following procedures that are in accordance with the law.
Plaintiffs rely primarily on McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991),
for the proposition that the district court has jurisdiction over “general collateral challenges to
[unlawful and] unconstitutional practices and policies used by the agency in processing
applications” even if the district court does not have jurisdiction over the agency’s determination
of a particular application. McNary, 498 U.S. at 492.
12
In McNary, the Supreme Court considered the manner in which the Immigration and
Naturalization Service (INS, a predecessor to USCIS) processed applications for a farmworker
amnesty program. The Immigration Reform and Control Act of 1986, which amended the INA,
established an amnesty program for “special agricultural workers” (SAW). Id. at 483. Applicants
for SAW status were required to demonstrate that they met certain statutory requirements; the first-
level reviewer could then reject the application or recommend that the regional office approve it.
Id. at 485. After the initial approval or denial, an appeals unit within the agency “was authorized
to make the final administrative decision in each individual case.” Id. A separate jurisdiction-
stripping provision “expressly prohibited judicial review of such a final administrative
determination of SAW status” except in the court of appeals, and only after a final administrative
order of deportation. Id. A simple denial of SAW status (without an accompanying deportation
order) could not be reviewed in any court, and no stage of the decisionmaking could be reviewed
in a district court. See id. at 485–86.
Nevertheless, the Supreme Court determined that the district court had jurisdiction to hear
the plaintiffs’ claims. The plaintiffs alleged, in a class action, that they were injured by “unlawful
practices and policies adopted by INS in its administration of the SAW program.” Id. at 487. In
particular, they alleged that the “interview process was conducted in an arbitrary fashion,”
including that “INS procedures did not allow SAW applicants to be apprised of or be given an
opportunity to challenge adverse evidence on which denials were predicated, that applicants were
denied the opportunity to present witnesses on their own behalf,” that “competent interpreters were
not provided,” and that “no verbatim recording of the interview was made, thus inhibiting even
meaningful administrative review.” Id. at 487–88. The Court explained that the jurisdiction-
stripping provision referred only to a court’s power to review the agency’s final decision whether
13
to grant or deny SAW status for a specific applicant, and thus did not bar review of a generalized
challenge to the manner in which the program was implemented. Id. at 492–93. Thus, the Court
concluded, “[b]ecause the administrative appeals process does not address the kind of procedural
and constitutional claims respondents bring in this action, limiting judicial review of these claims
to the procedures set forth in [the jurisdiction-stripping provision] is not contemplated by the
language of that provision.” Id. at 493.
The jurisdiction-stripping provision for the SAW program states that “there shall be no
administrative or judicial review of a determination respecting an application for adjustment of
status under this section except in accordance with this subsection.” 8 U.S.C. § 1160(e)(1)
(emphasis added). It continues, “[t]here shall be judicial review of such a denial only in the judicial
review of an order of exclusion or deportation” and “[s]uch judicial review shall be based solely
upon the administrative record.” Id. § 1160(e)(3)(a)–(b) (emphasis added).
The Supreme Court in McNary identified several reasons why that text did not bar district
court review of the plaintiffs’ claims. First, the words “a determination” and “an application” in
§ 1160(e)(1) “describe[] a single act rather than . . . a practice or procedure employed in making
decisions.” McNary, 498 U.S. at 492. Moreover, the later reference to “such a denial” in §
1160(e)(3) “again refer[s] to a single act, and again mak[es] clear that the earlier reference to ‘a
determination respecting an application’ describes the denial of an individual application.’” Id.
(quoting 8 U.S.C. § 1160(e)(1)). Additionally, the statutory limitation of appellate review to the
record established during the administrative proceeding “incorporates an assumption that the
limited review provisions of [the jurisdiction-stripping provision] apply only to claims that have
been subjected to administrative consideration and that have resulted in the creation of an adequate
administrative record.” Id. at 493. Therefore, any claims for which that administrative process
14
did not allow the creation of an adequate record could not be properly adjudicated through the
administrative process and the subsequent limited judicial review that the statute prescribed. And
finally, because the plaintiffs could not raise “the kind of procedural and constitutional claims” at
issue in that case in the administrative proceeding, “limiting judicial review of these claims to the
procedures set forth in [the jurisdiction-stripping provision] is not contemplated by the language
of that provision.” Id.McNary is one of a line of cases attempting to distinguish the types of claims subject to an
administrative process from the types of claims that can be raised directly in federal court. The
D.C. Circuit has explained the general rule that where Congress has created “a special statutory
review scheme . . . ‘it is ordinarily supposed that Congress intended that procedure to be the
exclusive means of obtaining judicial review in those cases to which it applies.’” Jarkesy v. SEC,
803 F.3d 9, 15 (D.C. Cir. 2015) (quoting City of Rochester v. Bond, 603 F.2d 927, 931 (D.C. Cir.
1979)). A special statutory review scheme exists when “(i) such intent is ‘fairly discernible in the
statutory scheme’ and (ii) the litigant’s claims are ‘of the type Congress intended to be reviewed
within [the] statutory structure.’” Id. (alteration in original) (quoting Thunder Basin Coal Co. v.
Reich, 510 U.S. 200, 207, 212 (1994)); see also Elgin v. U.S. Dep’t of Treasury, 567 U.S. 1, 8–10
(2012). A claim is not “of the type that Congress” expected to be funneled through the
administrative review process if it is “wholly collateral to a statute’s review provisions,” is “outside
the agency’s expertise,” or if following the administrative process would “foreclose all meaningful
judicial review.” Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 489
(2010) (internal quotation marks omitted) (quoting Thunder Basin, 510 U.S. at 212–13).
Moreover, a court must guard against a plaintiff who seeks “to short-circuit the administrative
process through the vehicle of a district court complaint.” Sturm, Ruger & Co. v. Chao, 300 F.3d
15867, 876 (D.C. Cir. 2002) (internal quotation marks omitted) (quoting Nat’l Mining Ass’n v. Dep’t
of Labor, 292 F.3d 849, 858 (D.C. Cir. 2002)). These considerations are not “distinct inputs into
a strict mathematical formula. Rather, [they] are general guideposts useful for channeling the
inquiry into whether the particular claims at issue fall outside an overarching congressional
design.” Jarkesy, 803 F.3d at 17.
Here, the Court concludes that the type of claims plaintiffs raise are not just challenges to
USCIS’s ruling on Manouchehr’s application—or to the immigration judge’s or Board of
Immigration Appeals’ future ruling on Manouchehr’s application—but rather are also to the
allegedly unlawful processes and practices USCIS has employed in adjudicating such applications.
The government’s arguments regarding ripeness, finality, and exhaustion with respect to the
agency’s final decision on Manouchehr’s application are therefore inapposite. Likewise, the
INA’s provisions limiting judicial review of the immigration judge’s and the Board of Immigration
Appeals’ decision to the circuit court, and prohibiting judicial review of discretionary decisions,
are also not relevant.
The jurisdiction-stripping provision pertinent here is similar to the text that the Supreme
Court analyzed in McNary. Section 1252 in the current INA limits judicial review and is analogous
to the jurisdiction-stripping provision analyzed in McNary (§ 1160(e)), and the provision that
McNary referenced which provided for limited review of removal proceedings (codified at the
time in § 1105a4). Section 1252 limits “[j]udicial review of orders of removal” and provides for
the exclusive means of review, stating: “a petition for review filed in the appropriate court of
appeals in accordance with this section shall be the sole and exclusive means of judicial review of
an order of removal.” 8 U.S.C. § 1252(a)(5) (emphasis added). It continues: “[w]ith respect to
4
That version of 8 U.S.C. § 1105a is no longer in effect.
16
review of an order of removal . . . [t]he petition for review shall be filed with the court of appeals
for the judicial circuit in which the immigration judge completed the proceedings.” Id. § 1252(b),
(b)(2) (emphasis added). The text of § 1252 uses the term “an order of removal” in the same
manner that § 1160(e)(1) uses the term “a determination regarding an application.” Like the
statutory text considered in McNary, then, this language refers to review of “a single act rather
than . . . a practice or procedure employed in making decisions.” McNary, 498 U.S. at 492. The
language the statute uses to specify the standard of review is also similar to that discussed in
McNary: here, the statute instructs that “the court of appeals shall decide the petition only on the
administrative record on which the order of removal is based.” 8 U.S.C. § 1252(b)(4)(A).
Unlike the text examined in McNary, however, there is some broader language in § 1252:
subsection (b)(9) states that “[j]udicial review of all questions of law and fact, including
interpretation and application of constitutional and statutory provisions, arising from any action
taken or proceeding brought to remove an alien . . . shall be available only in judicial review of a
final order under this section.” But that section, by its very language, is limited to review of a
particular order (“a final order”). This terminology is therefore subject to the same analysis that
the Court employed in McNary when it considered the phrase “a determination respecting an
application” in § 1160(e)(1): namely, that the limitation on judicial review pertains to review of “a
single act,” that is, the order of removal, “rather than . . . a practice or procedure employed in
making decisions.” McNary, 498 U.S. at 492. And even more than this specific phrase, the
provision as a whole falls within subsection (b), which begins as follows: “with respect to review
of an order of removal.” See 8 U.S.C. § 1252(b), (b)(9) (emphasis added). The language of section
(b) as a whole, and subsection (b)(9) in particular, then, while sweeping in some ways, uses
phrasing quite similar to that which the Supreme Court interpreted in McNary as referring only to
17
an adjudication of a particular application, not to a challenge to the procedure more generally.
Indeed, the D.C. Circuit’s “cases interpreting McNary hew to this distinction between collateral
and particularized claims.” See Gen. Elec. Co. v. Jackson, 610 F.3d 110, 126 (D.C. Cir. 2010).
This Court therefore concludes that the applicable language here is too much like the language in
McNary for this Court to deviate from the Supreme Court’s analysis there, and thus § 1252 does
not encompass plaintiffs’ challenge to the process USCIS used to adjudicate Manouchehr’s
application.5
Rather, as in McNary, plaintiffs raise claims that are outside of the scope of the
administrative process, and therefore beyond the scope of § 1252. Plaintiffs claim that they were
not “apprised of or . . . given opportunity to challenge the adverse evidence on which denials were
predicated.” McNary, 498 U.S. at 487-88; see Compl. ¶ 34; Pls.’ Opp’n at 7. Manouchehr asserts
that he was not informed of CARRP or of the basis for his inclusion in that program. Compl. ¶
34; Pls.’ Opp’n at 7. Indeed, the core of plaintiffs’ claim is that under CARRP any agency (not
just DHS and the Department of Justice, to which the INA delegates immigration authority) can
determine the outcome of an immigration application without explaining to the applicant why or
presenting him or her with an opportunity to challenge the relevant evidence. See Compl. ¶ 32.
Plaintiffs and the government agree that at no point in the administrative proceeding—
whether before USCIS, the immigration judge or the Board of Immigration Appeals—would they
be able to raise their constitutional and APA challenge to CARRP. See Defs.’ Reply Br. at 6;
5
Plaintiffs also argue that § 1252’s jurisdiction-striping provisions are inapplicable because they forbid
district court review of the Secretary’s decisions, and here plaintiffs allege that DHS did not make any decision at all
on Manouchehr’s application—instead, that it improperly outsourced that decision to the FBI based on the Terrorism
Screening Database. See Pls.’ Opp’n at 27–29. Plaintiffs rely on Ibrahim v. U.S. Department of Homeland Security,
538 F.3d 1250, 1254–56 (9th Cir. 2008), which held that a statute precluding district court review of certain
Transportation Security Administration decisions did not apply to review of the No-Fly List, because that list was
compiled by an office within the FBI. Because the Court finds that it has jurisdiction based on the text of § 1252 and
McNary, it need not reach this argument.
18
Defs.’ 1st Supp. Br. at 7; Pls.’ Opp’n at 3. This is because, the government explains, the
immigration judge would be empowered only to conduct his or her own review of Manouchehr’s
application for adjustment of status and render a decision on that application based on the statutory
and regulatory criteria, not to consider any claims regarding USCIS’s conduct. See Defs.’ 1st
Supp. Br. at 7. The Board of Immigration Appeals would likewise be empowered to review the
decision on his application, but not any claims regarding USCIS. Id.
If plaintiffs cannot raise their claims in district court at this stage of the litigation, they
argue that USCIS’s potentially unlawful actions could only be reviewed in the circuit court, and
that would not be effective judicial review because plaintiffs would be constrained to an inadequate
record. The same concern raised in McNary is precisely why the Supreme Court concluded that
the statute there did not preclude all judicial review. See McNary, 498 U.S. at 492–93; Daniels v.
Union Pac. R.R. Co., 530 F.3d 936, 943 (D.C. Cir. 2008) (“[T]he availability of effective judicial
review is the touchstone of the McNary exception.”). As the Supreme Court reiterated more
recently, courts should not assume that a claim must proceed through the administrative process if
doing so would “foreclose all meaningful judicial review.” Free Enter. Fund, 561 U.S. at 489
(quoting Thunder Basin, 510 U.S. at 212–13). Because plaintiffs’ claims regarding USCIS cannot
be raised in the administrative process, the circuit court would necessarily be hobbled when it
considered those claims because it would be limited to the administrative record before the
immigration judge and the Board of Immigration Appeals—and of course, there would not be a
record relating to plaintiffs’ challenge regarding USCIS and utilization of CARRP. See McNary,
498 U.S. at 493; 8 U.S.C. § 1252(a)(2)(D) (permitting judicial review of “constitutional claims or
questions of law” in the circuit court).
19
Plaintiffs’ claims regarding CARRP are therefore not of the type that Congress
contemplated routing through the administrative review process. They are “wholly collateral to
[the] statute’s review provisions,” because neither the immigration judge nor the Board of
Immigration Appeals can review them, and thus they are “outside the agency’s expertise.” Free
Enter. Fund, 561 U.S. at 489 (quoting Thunder Basin, 510 U.S. at 212). Indeed, this conclusion
naturally flows from the Court’s analysis of the text of § 1252: the administrative process is
designed to allow an applicant to raise specific claims about his or her removal (and thus judicial
review is limited to that same topic), but it is not designed to adjudicate broader challenges to the
processes DHS uses in resolving applications. Finally, there is no indication that the plaintiffs here
are trying “to short-circuit the administrative process.” See Sturm, Ruger & Co., 300 F.3d at 876
(quoting Nat’l Mining Ass’n, 292 F.3d at 858). Hence, the factors identified in McNary and
Jarkesy indicate that plaintiffs’ claims are not of the type that must go through the administrative
adjudication process. The Court therefore concludes that it has jurisdiction to consider those
claims.
II. CLAIM UNDER THE IMMIGRATION AND NATIONALITY ACT (COUNT II)
The government argues, in the alternative, that plaintiffs have failed to state a claim under
the INA because it does not create a private right of action “to challenge either the length of time
or process USCIS takes to adjudicate I-130 and I-485 petitions.” Defs.’ Mot. to Dismiss at 8.
Plaintiffs respond that they have stated a claim under 8 U.S.C. § 1255, the provision of the INA
that vests discretion to adjust an immigrant’s status in the Secretary of Homeland Security.6
6
The text of the INA refers to the Attorney General as the government official responsible for immigration.
In 2003, Congress amended the INA to identify the Secretary of Homeland Security as the responsible official, and
stated that any references in the INA to the Attorney General for functions that have been transferred to the Department
of Homeland Security “shall be deemed to refer” to the Secretary of Homeland Security. See 6 U.S.C. § 557 (2003);
8 U.S.C. § 1103(a).
20
Plaintiffs do not assert that § 1255 creates an explicit or implied right of action, and therefore the
Court does not decide those issues. Rather, they argue that this Court has the power to review
USCIS’s allegedly unlawful actions under the Mandamus Act or pursuant to a court’s inherent
authority to review government action that is “ultra vires or in excess of statutory authority.” Pls.’
Opp’n at 29–30 (quoting Trudeau v. FTC, 456 F.3d 178, 189–90 (D.C. Cir. 2006)).
Under the Mandamus Act, “district courts shall have original jurisdiction of any action in
the nature of mandamus to 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. But this jurisdiction is very
limited: “a district court may grant mandamus relief if (1) the plaintiff has a clear right to relief;
(2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to the
plaintiff.” In re Medicare Reimbursement Litig., 414 F.3d 7, 10 (D.C. Cir. 2005) (internal
quotation marks omitted). Separate from the Mandamus Act, the D.C. Circuit has held that in
some rare circumstances, “‘judicial review is available when an agency acts ultra vires,’ even if a
statutory cause of action is lacking.” Trudeau, 456 F.3d at 190 (quoting Aid Ass’n for Lutherans
v. U.S. Postal Serv., 321 F.3d 1166, 1173 (D.C. Cir. 2003)). But this relief, like mandamus relief,
is only available when “the plaintiff ha[s] no other means of obtaining review of the agency
action.” Ukiah Adventist Hosp. v. FTC, 981 F.2d 543, 550 (D.C. Cir. 1992).
That is not the case here. Rather, plaintiffs assert this same claim both in Count II as a
violation of the INA, brought through mandamus or the court’s inherent authority, and as a
substantive violation of the APA in Count III. In Count III, plaintiffs contend that the agency acted
in an arbitrary and capricious manner in violation of 5 U.S.C. § 706 when it acted in violation of
“the immigration laws.” Compl. ¶ 52. Hence, because plaintiffs are able to assert the same claim
through the APA, they cannot obtain relief under the Mandamus Act or through the Court’s
21
inherent power to review ultra vires agency actions. See Liu v. Novak, 509 F. Supp. 2d 1, 9 n.3
(D.D.C. 2007) (citing Action Alliance of Senior Citizens v. Leavitt, 483 F.3d 852, 858 (D.C. Cir.
2007)); Wagafe, 2017 WL 2671254, at *9. The Court will therefore grant defendants’ motion to
dismiss plaintiffs’ claim under the INA in Count II for failure to state a claim.
III. CLAIMS UNDER THE ADMINISTRATIVE PROCEDURE ACT (COUNTS III & V)
Plaintiffs raise two claims under the APA: that the government acted arbitrarily and
capriciously by subjecting Manouchehr’s application to CARRP (Count III) and that the
government failed to promulgate CARRP in accordance with the APA’s notice-and-comment
procedures (Count V). The government’s only argument with respect to Count III is mootness.
As explained above, the Court will deny the government’s motion with respect to Count III insofar
as it seeks relief other than demanding that USCIS take prompt action on Manouchehr’s claim.
With respect to Count V, the government argues that CARRP is not a final agency action.
An agency may only issue substantive or legislative rules using the APA’s notice-and-comment
procedures, unless the rule falls into one of a few identified exemptions. See 5 U.S.C. § 553(b).
However, only “final agency action[s]” are reviewable. See id. § 704. An agency action is final
when it (1) “mark[s] the consummation of the agency’s decisionmaking process” and (2) if the
action is “one by which rights or obligations have been determined, or from which legal
consequences will flow.” Bennet v. Spear, 520 U.S. 154, 178 (1997) (internal quotation marks
omitted). The government argues that, even if this Court has jurisdiction, plaintiffs have failed to
state a claim under the APA because CARRP is not final agency action. The one court to consider
this issue has held that CARRP is final agency action under the Supreme Court’s test in Bennet
and therefore is subject to an APA challenge. See Wagafe, 2017 WL 2671254, at *10. However,
this Court does not currently have enough information to resolve this issue. Neither party has
22
attached a copy of CARRP to their pleading or motion, nor has any party provided a citation for
where CARRP might be found, or even explained whether the policy exists in a written format.
Hence, the Court will deny without prejudice the government’s motion to dismiss Count V at this
time, but the government may renew this motion after further proceedings.
IV. CLAIM UNDER THE DUE PROCESS CLAUSE (COUNT IV)
Plaintiffs assert that the government’s adjudication of Manouchehr’s application in an
unlawful manner violated his due process rights (Count IV). Compl. ¶¶ 56–60. The government
counters that because adjustment of status is within the Secretary of Homeland Security’s
discretion, Manouchehr has no property or liberty interest that is protected by the Fifth
Amendment, and therefore has not stated a claim. See Defs.’ Mot. to Dismiss at 11–12. Plaintiffs
respond, in turn, that the government again misunderstands the relief they seek: they do not ask
for Manouchehr’s adjustment of status application to be granted, but instead just for his application
to be reviewed in accordance with the law. They therefore claim a due process right in having
Manouchehr’s application adjudicated by USCIS in accordance with the law (i.e., free from
application of CARRP). Pls.’ Opp’n at 21–22. The government does not respond to this argument
in its reply brief.
The “Due Process Clause applies to all ‘persons’ within the United States, including aliens,
where their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533
U.S. 678, 693 (2001). However, “[t]he requirements of procedural due process apply only to the
deprivation of interests encompassed by the [Fifth Amendment’s] protection of liberty and
property.” Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 569–70 (1972). The question,
then, is whether plaintiffs have a protected liberty or property interest here.
23
Numerous courts have held that discretionary immigration relief is not a protected property
interest, although the D.C. Circuit has not opined on the issue. See, e.g., McCreath v. Holder, 573
F.3d 38, 41 (1st Cir. 2009); Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir. 2008);
Hamdan v. Gonzales, 425 F.3d 1051, 1061 (7th Cir. 2005); Nativi-Gomez v. Ashcroft, 344 F.3d
805, 809 (8th Cir. 2003). But as explained above, plaintiffs do not seek the discretionary relief of
the Secretary granting Manouchehr’s adjustment of status. Rather, they seek USCIS’s
adjudication of Manouchehr’s application in accordance with the law (i.e., not through CARRP).
In particular, plaintiffs allege that “Manouchehr’s compliance with the statutory and regulatory
requirements vests in him a constitutionally-protected property and liberty interest” in having his
application lawfully adjudicated. Compl. ¶ 54. The government, for its part, assumes the answer
to this question in its briefing: it contends that “[w]here Plaintiff Manouchehr has no protected
interest in his ability to adjust status—and in fact his application has been adjudicated in
accordance with the law and regulations—the mere fact that the INA and regulations provide . . .
a process to adjust status[] does not create a protected interest in [Manouchehr’s] ability to adjust
status.” Defs.’ Mot. to Dismiss at 12; see also id. at 8 (“Plaintiffs’ applications have now been
adjudicated in accordance with the law and regulations”); Defs.’ Reply Br. at 1 (“[B]ecause
Plaintiffs’ applications have been adjudicated—in accordance with the applicable statutes and
regulations—there is simply no other relief that Plaintiffs may obtain from this Court at this
time.”). This is not a particularly helpful analysis, because whether or not “[Manouchehr’s]
application has been adjudicated in accordance with the law and regulations” is exactly what is
contested by plaintiffs.
However, the Court has not found any support for the proposition that Manouchehr has a
constitutionally protected liberty or property interest in his application being adjudicated in
24
accordance with the law, given that the ultimate determination of whether his application will be
granted is discretionary. None of the cases that plaintiffs cite support their theory. Rather, they
stand for the point that all “persons” in the United States are protected by the Due Process Clause,
and provide numerous examples of procedures that are insufficient when the government deprives
a person of liberty or property. See Pl.’s Opp’n at 21–22. But none go to the question of what
liberty or property interest, exactly, Manouchehr possesses that the government is allegedly
infringing upon. Because plaintiffs have not identified any protected property or liberty interest
of which Manouchehr is being deprived, the Court will grant the government’s motion to dismiss
Count IV.7
V. JOINDER
Under Federal Rule of Civil Procedure 19(a)(1)(A), joinder is proper if “in that person’s
absence, the court cannot accord complete relief among existing parties,” provided that joinder
“will not deprive the court of subject-matter jurisdiction.” Here, Manouchehr’s application is now
pending before an immigration judge within the Executive Office of Immigration Review (which
is part of the Department of Justice), and therefore DHS argues that it cannot grant the relief
requested because it has lost jurisdiction over Manouchehr’s application. Plaintiffs therefore ask
that the Acting Director of the Executive Office of Immigration Review, James McHenry, be
7
It is perhaps possible that Razeyeh could state a claim that her due process rights were violated by the
government’s allegedly unlawful adjudication of Manouchehr’s application, although that type of claim is generally
raised with respect to a non-citizen spouse rather than a non-citizen parent. See Escobar v. INS, 896 F.2d 564, 568–
70 (D.C. Cir. 1990) (citizen has protected interest in adjudication of her petition for immediate relative status for her
spouse and in adjudication of spouse’s claim to remain in the country); Ali v. INS, 661 F. Supp. 1234, 1246–47 & n.6
(D. Mass. 1986) (citizen has constitutionally protected interest in lawful adjudication of Form I-130, petition for
immediate relative status); Stokes v. INS, 393 F. Supp. 24, 29 (S.D.N.Y. 1975) (similar); see also Osunsanya v. U.S.
Citizenship and Immigration Servs., No. 06-10625-RWZ, 2007 WL 484864, at *4–5 (D. Mass. Feb. 12, 2007) (finding
non-citizen stated a procedural due process claim based on USCIS’s denial of his application for permanent resident
status following USCIS agent’s alleged threats to plaintiff’s U.S. citizen wife, in violation of her constitutional rights);
Boukhris v. Perryman, 2002 WL 193354, at *2 & n.1 (N.D. Ill. Feb. 7, 2002) (similar). However, the complaint
frames this count as solely an assertion of Manouchehr’s procedural due process rights, and thus the Court will not
reach the issue whether Razeyeh has any protected property or liberty interest in the adjudication of Manouchehr’s
application. See Compl. ¶ 54–55.
25
joined as a defendant. However, as plaintiffs note in their supplemental brief, adding McHenry as
a defendant is redundant because the Attorney General is already a defendant in this action. The
Attorney General, as head of the Department of Justice, is certainly empowered to grant the relief
sought. Therefore, because adding McHenry as a defendant would be redundant, the Court will
deny this request.
CONCLUSION
The government’s motion to dismiss is granted in part and denied in part. Count I will be
dismissed as moot; Counts II and III will be dismissed as moot in part insofar as they seek USCIS’s
prompt action on plaintiffs’ applications; the remainder of Count II will be dismissed for failure to
state a claim; and Count IV will be dismissed for failure to state a claim. Plaintiffs’ motion to join
James McHenry as a defendant will be denied. A separate order will issue on this date.
/s/
JOHN D. BATES
United States District Judge
Dated: September 7, 2017
26