Case: 4:16-cv-00692 Doc. #: 1 Filed: 05/18/16 Page: 1 of 32 PageID #: 1

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ERIOLA ARAPI (A# 062 776 361)

SAMINA SYED (A# 041 471 464)

WAFAA ALWAN (A# 212 166 955) SAQIB SARWAR (A# 059 821 029)

Case No. 4:16-CV-00692

MOHAMMAD A. AL MUTTAN (A# 098 049 220)

SYED ASGHAR ALI (A# 076 839 968)

IBRAHIM MOHAMED ZIDAN (A# 074 538 330)

HANAA B. KAYEM (A# 212 247 400)

ABUBAKAR AHMED ABULFATHI (A# 096 453 286)

MIRZETA TURSUNOVIC (A# 075 082 331)

AMINA TURSUNOVIC (A# 075 082 332)

SYED TARIQ ALI (A# 096137926)

MOHAMMAD S. JAUDA (A# 212 247 047)

Plaintiffs,

vs.

U.S. CITIZENSHIP & IMMIGRATION SERVICES (“USCIS”),

JEH JOHNSON, in his official capacity as Secretary of Homeland Security;

LEON RODRIGUEZ, in his official capacity as Director of U.S. Citizenship and Immigration Services;

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MATTHEW D. EMRICH, in his official capacity as Associate Director, Fraud Detection and National Security Directorate of U.S. Citizenship and Immigration Services;
DANIEL RENAUD, in his official capacity as Associate Director, Field Operations Directorate of U.S. Citizenship and Immigration Services;
DAVID DOUGLAS, in his official capacity as District Director of the Kansas City District Office, U.S. Citizenship and Immigration Services;
and,
CHESTER MOYER, in his official capacity as Director of St. Louis Field Office of the U.S. Citizenship and Immigration Services.
Defendants.
COMPLAINT FOR DECLARATORY AND INJUNCIVE RELIEF PETITIONS FOR NATURALIZATION
1. This lawsuit challenges the United States Citizenship and
Immigration Service’s (“USCIS”) unlawful delay of Plaintiffs’ applications for
citizenship under a secretive policy that has blacklisted Plaintiffs as “national
security concerns,” when in fact they are not, and illegally prohibited them from
upgrading their immigration status, despite their eligibility to do so.
2. Plaintiffs are law-abiding, long-time residents of the United States
who meet the statutory criteria to be naturalized as American citizens.
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3. Despite this, USCIS has refused adjudicated Plaintiffs’ applications in accordance with applicable legal criteria. Instead, USCIS has applied different rules under a policy known as the Controlled Application Review and Resolution Program (“CARRP”), which has resulted in the agency refusing to adjudicate Plaintiffs’ applications.
4. Plaintiffs bring this action to compel the USCIS to finally—after years of waiting—adjudicate their pending applications for naturalization as required by law.
5. The Constitution expressly assigns to Congress, not the executive branch, the authority to establish uniform rules of naturalization. The Immigration and Nationality Act (“INA”) sets forth such rules.
6. When these rules and requirements have been met, as they have been in Plaintiffs’ cases, USCIS is obligated to grant citizenship.
7. Since 2008, however, USCIS has used CARRP—an internal policy that has neither been approved by Congress nor subjected to public notice and comment—to investigate and adjudicate applications deemed to present potential “national security concerns.”
8. CARRP prohibits USCIS field officers from approving an application with a potential “national security concern,” instead directing officers to deny the application or delay adjudication—often indefinitely—in violation of the INA.
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9. CARRP’s definition of “national security concern” is far more expansive than the security-related ineligibility criteria for immigration applications set forth by Congress in the INA.
10. CARRP identifies “national security concerns” based on deeplyflawed and expansive government watchlists, and other vague and imprecise criteria that bear no relation to the security-related statutory ineligibility criteria.
11. The CARRP definition illegally brands innocent, law-abiding residents, like Plaintiffs—none of whom pose a security threat—as “national security concerns” on account of innocuous activity and associations, innuendo, suppositions and characteristics such as national origin.
12. Although the total number of people subject to CARRP is not known, USCIS data reveals that between FY2008 and FY2012, more than 19,000 people from twenty-one Muslim-majority countries or regions were subjected to CARRP.
13. Due to CARRP, USCIS has not adjudicated Plaintiffs’ applications, as the law requires. Each Plaintiff has experienced an extraordinary processing delay of their case.
14. Although USCIS has thus far prevented Plaintiffs from becoming U.S. citizens , the agency has not notified Plaintiffs that it considers them potential “national security concerns,” provided the reasons why it classified them in this way, or afforded them any opportunity to address and correct any basis for USCIS’s concerns.
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15. Plaintiffs therefore request that the Court enjoin USCIS from applying CARRP to their immigration applications and declare that CARRP violates the INA; Article 1, Section 8, Clause 4 of the United States Constitution (the naturalization clause); the Due Process Clause of the Fifth Amendment to the U.S. Constitution; and the Administrative Procedure Act (“APA”).
JURISDICTION AND VENUE 16. Plaintiffs allege violations of the INA, the APA, and the U.S. Constitution. This Court has subject matter jurisdiction under 28 U.S.C. § 1331 and 5 U.S.C. § 702 (waiver of federal government’s sovereign immunity). This Court also has authority to grant declaratory relief under 28 U.S.C. §§ 2201 and 2202, and injunctive relief under 5 U.S.C. § 702 and 28 U.S.C. § 1361. 17. Venue is proper in the Eastern District of Missouri under 28 U.S.C. §§ 1391(b) and 1391(e) because (1) Plaintiffs reside in this district; (2) a substantial part of the events giving rise to the claims occurred in this district; and (3) Plaintiffs sue Defendants in their official capacity as officers of the United States. Plaintiffs 18. Plaintiff Eriola Arapi (A# 062 776 361) is a twenty-three year old national of Albania and a lawful permanent resident (“LPR”) of the United States. She is married to a United States citizen and resides in St. Louis, Missouri. She applied for naturalization on or about July 10, 2015. Ms. Arapi appeared for interview on December 8, 2015. Even though she satisfies all statutory criteria for
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naturalization, USCIS subjected her application to CARRP, and as a result, has not finally adjudicated and approved it.
19. Plaintiff Samina Syed (A# 041 471 464) is a sixty-one year old national of Pakistan and a lawful permanent resident (“LPR”) of the United States. She resides in St. Louis, Missouri. She applied for naturalization on or about May 1, 2015. USCIS has thus far refused to interview Ms. Syed. Even though she satisfies all statutory criteria for naturalization, USCIS subjected her application to CARRP, and as a result, has not finally adjudicated and approved it.
20. Plaintiff Wafaa Alwan (A# 212 166 955) is a forty-nine year old national of Iraq and a lawful permanent resident (“LPR”) of the United States. She resides in St. Louis, Missouri. She applied for naturalization on December 17, 2014. Ms. Alwan appeared for interview on August 31, 2015. Even though she satisfies all statutory criteria for naturalization, USCIS subjected her application to CARRP, and as a result, has not finally adjudicated and approved it.
21. Plaintiff Saqib Sarwar (A# 059 821 029) is a twenty-nine year old national of Pakistan and a lawful permanent resident (“LPR”) of the United States. He resides in St. Louis, Missouri. He applied for naturalization on June 22, 2015. Mr. Sarwar appeared for interview on December 17, 2015. Even though he satisfies all statutory criteria for naturalization, USCIS subjected his
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application to CARRP, and as a result, has not finally adjudicated and approved it.
22. Plaintiff Mohammad A. Al Muttan (A# 098 049 220) is a thirty-four year old national of Palestine and a lawful permanent resident (“LPR”) of the United States. He is married to a U.S. citizen and resides in St. Louis, Missouri. He applied for naturalization on February 23, 2015. USCIS has thus far refused to interview Mr. Al Muttan. Even though he satisfies all statutory criteria for naturalization, USCIS subjected his application to CARRP, and as a result, has not finally adjudicated and approved it.
23. Plaintiff Syed Asghar Ali (A# 076 839 968) is a forty-seven year old national of Pakistan and a lawful permanent resident (“LPR”) of the United States. He resides in St. Louis, Missouri. He applied for naturalization on March 13, 2014. Mr. Ali was scheduled for an interview on April 14, 2014. USCIS unilaterally cancelled that interview and has refused to reschedule it despite the fact that two years have now passed. Even though he satisfies all statutory criteria for naturalization, USCIS subjected his application to CARRP, and as a result, has not finally adjudicated and approved it.
24. Plaintiff Ibrahim Mohamed Zidan (A# 074 538 330) is a forty-seven year old national of Egypt and a lawful permanent resident (“LPR”) of the United States. He resides in St. Louis, Missouri. He applied for naturalization on March 17, 2015. USCIS has thus far refused to interview Mr. Zidan. Even though he
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satisfies all statutory criteria for naturalization, USCIS subjected his application to CARRP, and as a result, has not finally adjudicated and approved it.
25. Plaintiff Hanaa B. Kayem (A# 212 247 400) is a fifty-one year old national of Iraq and a lawful permanent resident (“LPR”) of the United States. She resides in St. Louis, Missouri. She applied for naturalization on or about July 31, 2015. USCIS has thus far refused to interview Ms. Kayem. Even though she satisfies all statutory criteria for naturalization, USCIS subjected her application to CARRP, and as a result, has not finally adjudicated and approved it.
26. Plaintiff Abubakar Ahmed Abulfathi (A# 096 453 286) is a thirty-five year old national of Nigeria and a lawful permanent resident (“LPR”) of the United States. He resides in St. Louis, Missouri. He applied for naturalization on July 15, 2015. Mr. Abulfathi appeared for interview on January 4, 2016. Even though he satisfies all statutory criteria for naturalization, USCIS subjected his application to CARRP, and as a result, has not finally adjudicated and approved it.
27. Plaintiff Mirzeta Tursunovic (A# 075 082 331) is a thirty-eight year old national of Bosnia and a lawful permanent resident (“LPR”) of the United States. She resides in St. Louis, Missouri. She applied for naturalization on or about December 22, 2014. USCIS has thus far refused to interview Ms. Tursunovic. Even though she satisfies all statutory criteria for naturalization, USCIS subjected her application to CARRP, and as a result, has not finally adjudicated and approved it.
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28. Plaintiff Amina Tursunovic (A# 075 082 332) is a nineteen year old national of Bosnia and a lawful permanent resident (“LPR”) of the United States. She resides in St. Louis, Missouri. Amina Tursunovic is the daughter of Plaintiff Mirzeta Tursunovic. Amina Tursunovic applied for naturalization on or about February 25, 2015. USCIS has thus far refused to interview Ms. Amina Tursunovic. Even though she satisfies all statutory criteria for naturalization, USCIS subjected her application to CARRP, and as a result, has not finally adjudicated and approved it.
29. Plaintiff Syed Tariq Ali (A# 096 137 926) is a fifty-two year old national of Pakistan and a lawful permanent resident (“LPR”) of the United States. He resides in St. Louis, Missouri. He applied for naturalization on July 7, 2014. USCIS has thus far refused to interview Mr. Ali. Even though he satisfies all statutory criteria for naturalization, USCIS subjected his application to CARRP, and as a result, has not finally adjudicated and approved it.
30. Plaintiff Mohammad S. Jauda (A# 212 247 047) is a thirty-nine year old national of Iraq and a lawful permanent resident (“LPR”) of the United States. He resides in St. Louis, Missouri. He applied for naturalization on October 28, 2014. USCIS has thus far refused to interview Mr. Jauda. Even though he satisfies all statutory criteria for naturalization, USCIS subjected his application to CARRP, and as a result, has not finally adjudicated and approved it.
31. Plaintiffs have suffered and continue to suffer prejudice from the unreasonable delay of their naturalization. While they await adjudication of their
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respective applications, Plaintiffs are deprived of the substantial and unique rights and duties of U.S. citizenship, including the right to vote, to hold public office, to travel on a U.S. passport and other benefits of citizenship. The delay in citizenship is of additional concern given the fact that 2016 is an election year and the deadline for registering to vote in the November general election is October 12, 2016. Defendants
32. Defendant USCIS is a component of the Department of Homeland Security (“DHS”), and is charged with overseeing lawful immigration to the United States and the naturalization of LPRs as U.S. citizens. USCIS implements federal law and policy with respect to immigration applications.
33. Defendant Jeh Johnson is the Secretary of DHS, the department under which USCIS and several other immigration agencies operate. Accordingly, Secretary Johnson has supervisory responsibility over USCIS. Plaintiffs sue Defendant Johnson in his official capacity.
34. Defendant Leon Rodriguez is the Director of USCIS. Director Rodriguez establishes and implements naturalization and other immigration applications policy for USCIS and its subdivisions, including the illegal CARRP program. Plaintiffs sue Defendant Rodriguez in his official capacity.
35. Defendant Matthew D. Emrich is the Associate Director of the Fraud Detection and National Security Directorate of USCIS (“FDNS”), which is ultimately responsible for determining whether individuals or organizations filing
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naturalization and other immigration applications pose a threat to national security, public safety, or the integrity of the nation’s legal immigration system. Associate Director Emrich establishes and implements policy for FDNS, including CARRP. Plaintiffs sue Defendant Emrich in her official capacity.
36. Defendant Daniel Renaud is the Associate Director of the Field Operations Directorate of USCIS, which is responsible for and oversees the processing and adjudication of immigration applications through the USCIS field offices and the National Benefits Center. Plaintiffs sue Defendant Renaud in his official capacity.
37. Defendant David Douglas is the District Director for District 15, Kansas City District Office of USCIS, which has responsibility for the St. Louis Field Office. District Director Douglas has been delegated the authority to adjudicate immigration applications filed within his district and is responsible for the adjudication of Plaintiffs’ applications. Plaintiffs sue Defendant Douglas in his official capacity.
38. Defendant Chester Moyer is the Field Office Director for the St. Louis Field Office of USCIS. He is the official in charge of the field office assigned to conduct interviews on Plaintiffs’ naturalization applications and he is responsible for the adjudication of their applications. Plaintiffs sue Defendant Moyer in his official capacity.
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PERMISSIVE JOINDER 39. Plaintiffs bring this action jointly pursuant to Federal Rule of Civil Procedure 20, which allows for permissive joinder. Rule 20 provides that “persons may join in one action as plaintiffs if (A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all plaintiffs will arise in the action.” FED. R. CIV. P. 20(a). 40. This action arises out of the same transaction or occurrence, or series of transactions or occurrences, in that the unlawful delays challenged are the result of the same pattern or practice by Defendants of unreasonably and unlawfully delaying the adjudication of applications for naturalization based on the CARRP program. This action also raises common issues of law and fact. As a factual matter, Plaintiffs are similarly situated. All have submitted applications for naturalization, are eligible for naturalization, and have been awaiting adjudication on their applications for more than a year for their naturalization. Plaintiffs have been told or have reason to believe that the sole reason for the delay is pendency of the “background” or “security” checks. 41. As a factual and legal matter, Plaintiffs allege that they have been injured by the same pattern or practice by Defendants of unlawfully and unreasonably delaying adjudication of their applications. Plaintiffs allege that
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Defendants’ unlawful delay is based on the illegal and unauthorized CARRP program described below.
42. In addition, Plaintiffs allege similar harms from the delay of their naturalization applications, including, but not limited to, the inability to participate in civic society by voting, delays in family reunification, the inability to apply for jobs that require U.S. citizenship, and the anxiety of having an uncertain status in the country they have made their home and where they have established themselves as part of a community.
43. Lastly, Plaintiffs jointly seek the same legal remedies: a declaration that Defendants have engaged in unreasonable and extraordinary delay in adjudicating Plaintiffs’ naturalization applications; an order compelling Defendants to complete the Plaintiffs’ applications, and adjudicate Plaintiffs’ applications for naturalization, within 45 days of the Court’s order; an order enjoining Defendants to take eliminate and dismantle the CARRP program; for attorneys’ fees; and, for such further relief set forth below in Plaintiffs’ prayer
44. This action thus satisfies the requirements for permissive joinder. It involves the same transaction (Defendants’ unlawful policies, patterns and practices); and common questions of law and fact (regarding the lawfulness of Defendants’ actions). Permissive joinder of these Plaintiffs, rather than multiple individual actions raising the same factual and legal allegations, would serve the purpose of Rule 20 by promoting judicial efficiency.
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LEGAL FRAMEWORK 45. To naturalize as a U.S. citizen, an applicant must satisfy certain eligibility criteria under the INA and its implementing regulations. See 8 U.S.C. §§ 1421-27, 1458; 8 C.F.R. §§ 316.1-316.14.28. 46. Applicants must prove that they are “at least 18 years of age,” 8 C.F.R. § 316.2(a)(1); have “resided continuously, after being lawfully admitted” in the United States “for at least five years” (or three years if married to a U.S. citizen); and have been “physically present” in the United States for “at least half of that time.” 8 U.S.C. § 1427(a)(1). 47. Applicants must also demonstrate “good moral character” for the five years preceding the date of application, “attach[ment] to the principles of the Constitution of the United States, and favorabl[e] dispos[ition] toward the good order and happiness of the United States . . . .” 8 C.F.R. § 316.2(a)(7). 48. An applicant is presumed to possess the requisite “good moral character” for naturalization unless, during the five years preceding the date of the application, they are found (1) to be a habitual drunkard, (2) to have committed certain drug-related offenses, (3) to be a gambler whose income derives principally from gambling or has been convicted of two or more gambling offenses, (4) to have given false testimony for the purpose of obtaining immigration benefits; or if the applicant (5) has been convicted and confined to a penal institution for an aggregate period of 180 days or more, (6) has been convicted of an aggravated felony, or (7) has engaged in conduct such as aiding
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Nazi persecution or participating in genocide, torture, or extrajudicial killings. 8 U.S.C. § 1101(f)(6).
49. An applicant is barred from naturalizing for national security-related reasons in circumstances limited to those codified in 8 U.S.C. § 1424, including, inter alia, if the applicant has advocated, is affiliated with any organization that advocates, or writes or distributes information that advocates “the overthrow by force or violence or other unconstitutional means of the Government of the United States,” the “duty, necessity, or propriety of the unlawful assaulting or killing of any officer . . . of the Government of the United States,” or “the unlawful damage, injury, or destruction of property.”
50. Once an individual submits an application, USCIS conducts a background investigation, see 8 U.S.C. § 1446(a); 8 C.F.R. § 335.1, which includes a full FBI criminal background check, see 8 C.F.R. § 335.2.
51. After completing the background investigation, USCIS schedules a naturalization examination at which the applicant meets with a USCIS examiner for an interview.
52. In order to avoid inordinate processing delays and backlogs, Congress has stated “that the processing of an immigration benefit application,” which includes naturalization, “should be completed not later than 180 days after the initial filing of the application.” 8 U.S.C. § 1571(b). USCIS must either grant or deny a naturalization application within 120 days of the date of the examination. 8 C.F.R. § 335.3.
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53. If the applicant has complied with all requirements for naturalization, federal regulations state that USCIS “shall grant the application.” 8 C.F.R. § 335.3(a) (emphasis added).
54. Courts have long recognized that “Congress is given power by the Constitution to establish an uniform Rule of Naturalization. . . . And when it establishes such uniform rule, those who come within its provisions are entitled to the benefit thereof as a matter of right. . . .” Schwab v. Coleman, 145 F.2d 672, 676 (4th Cir. 1944) (emphasis added); see also Marcantonio v. United States, 185 F.2d 934, 937 (4th Cir. 1950) (“The opportunity having been conferred by the Naturalization Act, there is a statutory right in the alien to submit his petition and evidence to a court, to have that tribunal pass upon them, and, if the requisite facts are established, to receive the certificate.” (quoting Tutun v. United States, 270 U.S. 568, 578 (1926))).
55. Once an application is granted, the applicant is sworn in to be sworn in as a U.S. citizen.
FACTUAL BACKGROUND Controlled Application Review and Resolution Program
56. In April 2008, USCIS created CARRP, an agency-wide policy for identifying, processing, and adjudicating immigration applications that raise “national security concerns.”
57. Upon information and belief, prior to CARRP’s enactment, USCIS simply delayed the adjudication of many immigration applications that raised
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possible “national security concerns,” in part due to backlogs created by the FBI Name Check.
58. Congress did not enact CARRP, and USCIS did not promulgate it as a proposed rule with the notice-and-comment procedures mandated by the APA. See 5 U.S.C. § 553(b)-(c).
59. Since CARRP’s inception, USCIS has not made information about CARRP available to the public, except in response to Freedom of Information Act (“FOIA”) requests and litigation to compel responses to those requests. In fact, the program was unknown to the public, including applicants for immigration benefits, until it was discovered in litigation challenging an unlawful denial of naturalization and then through the government’s response to a FOIA request.
60. CARRP directs USCIS officers to screen immigration applications— including applications for asylum, visas, lawful permanent residency, and naturalization—for “national security concerns.”
61. If a USCIS officer determines that an application presents a “national security concern,” it takes the application off a “routine adjudication” track and— without notifying the applicant—places it on a CARRP adjudication track where it is subject to procedures and criteria unique to CARRP that result in lengthy delays and prohibit approvals, except in limited circumstances, regardless of an applicant’s statutory eligibility. CARRP’s Definition of a “National Security Concern”
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62. According to the unauthorized CARRP definition utilized by Defendants, a “national security concern” arises when “an individual or organization [that] has been determined to have an articulable link”—no matter how attenuated or unsubstantiated—“to prior, current, or planned involvement in, or association with, an activity, individual, or organization described in sections 212(a)(3)(A), (B), or (F), or 237(a)(4)(A) or (B) of the Immigration and Nationality Act.” Those sections of the INA make inadmissible or removable any individual who, inter alia, “has engaged in terrorist activity” or is a member of a “terrorist organization.”
63. For the reasons described herein, an individual need not be actually suspected of engaging in any unlawful activity or joining any forbidden organization to be branded a “national security concern” under CARRP.
64. CARRP purportedly distinguishes between two types of “national security concerns”: those ostensibly involving “Known or Suspected Terrorists” (“KSTs”), and those ostensibly involving “non-Known or Suspected Terrorists” (“non-KSTs”).
65. USCIS automatically considers an applicant a KST, and thus a “national security concern,” if his or her name appears in the Terrorist Screening Database (“TSDB”) (also referred to as the Terrorist Watch List). USCIS, therefore, applies CARRP to any applicant whose name appears in the TSDB, regardless as to whether they actually belong on the list.
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66. Upon information and belief, the TSDB includes as many as one million names, many of whom present no threat to the United States.
67. The government’s recently disclosed criteria for watchlist nominations, known as the Watchlisting Guidance, impermissible allows nonU.S. citizens, including LPRs, to be listed in the TSDB even where the government does not have “reasonable suspicion” of involvement with terrorist activity.
68. The Guidance permits the watchlisting of non-citizens and LPRs simply for being associated with someone else who has been watchlisted, even when any involvement with that person’s purportedly suspicious activity is unknown.
69. The Guidance further provides that non-citizens and LPRs may be watchlisted based on fragmentary or uncorroborated information, or information of “suspected reliability.” These extremely loose standards significantly increase the likelihood that the TSDB contains information on individuals who are neither known nor appropriately suspected terrorists.
70. To make matters worse, the Terrorist Screening Center (“TSC”), which maintains the TSDB, has failed to ensure that innocent individuals are not watchlisted or are promptly removed from watchlists.
71. In the year 2013, the watchlisting community nominated 468,749 individuals to the TSDB, and the TSC rejected only approximately one percent of those nominations.
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72. In 2009, the Government Accountability Office found that 35 percent of the nominations to the TSDB were outdated, and that tens of thousands of names had been placed on the list without an adequate factual basis.
73. The Inspector General of the Department of Justice has criticized the Terrorist Screening Center, which maintains the TSDB, for employing weak quality assurance mechanisms and for failing to remove subjects from the TSDB when information no longer supports their inclusion. Public reports also confirm that the government has nominated or kept people on government watchlists as a result of human error.
74. The federal government’s official policy is to refuse to confirm or deny give individuals’ inclusion in the TSDB or provide a meaningful opportunity to challenge that inclusion.
75. Nevertheless, individuals can become aware of their inclusion due to air travel experiences. In particular, individuals may learn that they are on the “Selectee List,” a subset of the TSDB, if they have the code “SSSS” listed on their boarding passes. They may also learn of their inclusion in the TSDB if U.S. federal agents regularly subject them to secondary inspection when they enter the United States from abroad or when boarding a flight over U.S. airspace. Such individuals are also often unable to check in for flights online or at airline electronic kiosks at the airport.
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76. Where the KST designation does not apply, CARRP instructs officers to look for “indicators” of a “non-Known or Suspected Terrorist” (“nonKST”) concern.
77. These indicators fall into three categories: (1) statutory indicators; (2) non-statutory indicators; and (3) indicators contained in security check results.
78. “Statutory indicators” of a “national security concern” arise when an individual generally meets the definitions described in Sections 212(a)(3)(A), (B), and (F), and 237(a)(4)(A) and (B) of the INA (codified at 8 U.S.C. § 1182(a)(3)(A), (B), and (F) and § 1227(a)(4)(A) and (B)), which list the security and terrorism grounds of inadmissibility and removability.
79. However, CARRP expressly defines statutory indicators of a “national security concern” more broadly than the statute, stating “the facts of the case do not need to satisfy the legal standard used in determining admissibility or removability” under those provisions of the INA to give rise to a “non-KST” “national security concern.” This is illegal and contrary to law.
80. For example, CARRP specifically directs USCIS officers to look at evidence of charitable donations to organizations later designated as financiers of terrorism by the U.S. Treasury Department and to construe such donations as evidence of a “national security concern,” even if an individual had made such donations without any knowledge or any reasonable way of knowing that the organization was allegedly engaged in proscribed activity. Such conduct would not make an applicant inadmissible for a visa or lawful permanent resident status
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under the statute, see INA § 212(a)(3)(B), 8 U.S.C. § 1182(a)(3)(B), nor does it have any bearing on a naturalization application.
81. “Non-statutory indicators” of a “national security concern” include “travel through or residence in areas of known terrorist activity”; “large scale transfer or receipt of funds”; a person’s employment, training, or government affiliations; the identities of a person’s family members or close associates, such as a “roommate, co-worker, employee, owner, partner, affiliate, or friend”; or simply “other suspicious activities.”
82. Finally, security check results are considered indicators of a “national security concern” in instances where, for example, the FBI Name Check—one of many security checks utilized by USCIS—produces a positive hit on an applicant’s name and the applicant’s name is associated with a national security related investigatory file. Upon information and belief, this indicator leads USCIS to label applicants “national security concerns” solely because their names appear in a law enforcement or intelligence file, even if they were never the subject of an investigation.
83. Thus, an applicant’s name could appear in a law enforcement file in connection with a national security investigation because he or she once gave a voluntary interview to an FBI agent, he or she attended a mosque that was the subject of FBI surveillance, or he or she knew or was associated with someone under investigation.
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84. Upon information and belief, CARRP labels applicants “national security concerns” based on vague and overbroad criteria that often turn on lawful activity, national origin, and innocuous associations. These criteria are untethered from the statutory criteria that determine whether or not a person is eligible for the immigration status they seek, and are so general that they necessarily ensnare individuals who pose no threat to the security of the United States. Delay and Denial
85. Once a USCIS officer identifies a CARRP-defined “national security concern,” the application is subjected to CARRP’s rules and procedures that guide officers to deny such applications or, if an officer cannot find a basis to deny the application, to delay adjudication as long as possible.
86. One such procedure is called “deconfliction,” which requires USCIS to coordinate with—and, upon information and belief, subordinate its authority to—the law enforcement agency, often the FBI, that possesses information giving rise to the supposed national security concern.
87. During deconfliction, the relevant law enforcement agency has authority to instruct USCIS to ask certain questions in an interview or to issue a Request for Evidence (“RFE”); to comment on a proposed decision on the benefit; and to request that an application be denied, granted, or held in abeyance for an indefinite period of time.
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88. Upon information and belief, deconfliction not only allows law enforcement or intelligence agencies to directly affect the adjudication of a requested immigration benefit, but also results in independent interrogations of the immigration applicant—or the applicant’s friends and family—by agencies such as the FBI.
89. Upon information and belief, USCIS often makes decisions to deny immigration applications because the FBI requests or recommends the denial, not because the person was statutorily ineligible for the benefit. The FBI often requests that USCIS hold or deny an application not because the applicant poses a threat, but because it seeks to use the pending immigration application to coerce the applicant to act as an informant or otherwise provide information.
90. In addition to “deconfliction,” once officers identify an applicant as a “national security concern,” CARRP directs officers to perform an “eligibility assessment” to determine whether the applicant is eligible for the benefit sought.
91. Upon information and belief, at this stage, CARRP instructs officers to look for any possible reason to deny an application so that “valuable time and resources are not unnecessarily expended” to investigate the possible “national security concern.” Where no legitimate reason supports denial of an application subjected to CARRP, USCIS officers often invent false or pretextual reasons to deny the application.
92. Upon information and belief, if, after performing the eligibility assessment, an officer cannot find a reason to deny an application, CARRP
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instructs officers to first “internally vet” the “national security concern” using information available in DHS systems and databases, open source information, review of the applicant’s file, RFEs, and interviews or site visits.
93. After conducting the eligibility assessment and internal vetting, USCIS officers are instructed to again conduct “deconfliction” to determine the position of any interested law enforcement agency.
94. If the “national security concern” remains and the officer cannot find a basis to deny the benefit, the application then proceeds to “external vetting.”
95. During “external vetting,” USCIS instructs officers to confirm the existence of the “national security concern” with the law enforcement or intelligence agency that possesses the information that created the concern and obtain additional information from that agency about the concern and its relevance to the individual.
96. CARRP authorizes USCIS officers to hold applications in abeyance for periods of 180 days to enable law enforcement agents and USCIS officers to investigate the “national security concern.” The Field Office Director may extend the abeyance periods so long as the investigation remains open.
97. Upon information and belief, CARRP provides no outer limit on how long USCIS may hold a case in abeyance, even though the INA requires USCIS to adjudicate a naturalization application within 120 days of examination, 8 C.F.R. § 335.3, and Congress has made clear its intent that USCIS adjudicate
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immigration applications, including for naturalization and lawful permanent residence, within 180 days of filing the application. 8 U.S.C. § 1571(b).
98. When USCIS considers an applicant to be a KST “national security concern,” CARRP forbids USCIS field officers from granting the requested benefit even if the applicant satisfies all statutory and regulatory criteria.
99. When USCIS considers an applicant to be a non-KST “national security concern,” CARRP forbids USCIS field officers from granting the requested benefit in the absence of supervisory approval and concurrence from a senior level USCIS official.
100. In Hamdi v. USCIS, 2012 WL 632397, when asked whether USCIS’s decision to brand naturalization applicant Tarek Hamdi as a “national security concern” affected whether he was eligible for naturalization, a USCIS witness testified at deposition that “it doesn’t make him statutorily ineligible, but because he is a—he still has a national security concern, it affects whether or not we can approve him.” The witness testified that, under CARRP, “until [the] national security concern [is] resolved, he won’t get approved.”
101. Upon information and belief, USCIS often delays adjudication of applications subject to CARRP when it cannot find a reason to deny the application. When an applicant files a mandamus action to compel USCIS to finally adjudicate his or her pending application, it often has the effect of forcing USCIS to deny a statutorily-eligible application because CARRP prevents agency field officers from granting an application involving a “national security concern.”
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102. CARRP effectively creates two substantive regimes for immigration application processing and adjudication: one for those applications subject to CARRP and one for all other applications. CARRP rules and procedures create substantive eligibility criteria that exclude applicants from immigration benefits to which they are entitled by law.
103. At no point during the CARRP process is the applicant made aware that he or she has been labeled a “national security concern,” nor is the applicant ever provided with an opportunity to respond to and contest the classification.
104. Upon information and belief, CARRP results in extraordinary processing and adjudication delays, often lasting many years, and baseless denials of statutorily-eligible immigration applications.
COUNT I - IMMIGRATION & NATIONALITY ACT AND IMPLEMENTING REGULATIONS (ALL PLAINTIFFS)
105. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.
106. To secure naturalization, an applicant must satisfy certain statutorily -enumerated criteria.
107. By its terms, CARRP creates additional, non-statutory, substantive criteria that must be met prior to a grant of a naturalization application.
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108. Accordingly, CARRP violates 8 U.S.C. § 1427, 8 C.F.R. § 316.2, and 8 C.F.R. § 335.3, as those provisions set forth the exclusive applicable statutory and regulatory criteria for a grant of naturalization.
109. Because of this violation and because CARRP’s additional, nonstatutory, substantive criteria have been applied to Plaintiffs, Plaintiffs have suffered and continue to suffer injury in the form of unreasonable delays and unwarranted denials of their applications for naturalization.
COUNT II - UNIFORM RULE OF NATURALIZATION (ALL PLAINTIFFS)
110. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.
111. Congress has the sole power to establish criteria for naturalization, and any additional requirements, not enacted by Congress, are ultra vires.
112. By its terms, CARRP creates additional, non-statutory, substantive criteria that must be met prior to a grant of a naturalization application.
113. Accordingly, CARRP violates Article I, Section 8, Clause 4 of the United States Constitution.
114. Because of this violation and because CARRP’s additional, nonstatutory, substantive criteria have been applied to Plaintiffs, all Plaintiffs have suffered and continue to suffer injury in the form of unreasonable delays and unwarranted denials of their naturalization applications.
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COUNT III - ADMINISTRATIVE PROCEDURE ACT (5 U.S.C. § 706) (ALL PLAINTIFFS)
115. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.
116. CARRP constitutes final agency action that is arbitrary and capricious because it “neither focuses on nor relates to a [non-citizen’s] fitness to” obtain the immigration benefits subject to its terms. Judulang v. Holder, 132 S. Ct. 476, 485 (2011).
117. CARRP is also not in accordance with law, is contrary to constitutional rights, and is in excess of statutory authority because it violates the INA and exceeds USCIS’s statutory authority to implement (not create) the immigration laws, as alleged herein.
118. As a result of these violations, Plaintiffs have suffered and continue to suffer injury in the form of unreasonable delays and unwarranted denials of their immigration applications. COUNT IV - ADMINISTRATIVE PROCEDURE ACT (NOTICE AND COMMENT)
(ALL PLAINTIFFS) 119. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein. 120. The APA, 5 U.S.C. § 553, requires administrative agencies to provide a notice-and-comment period prior to implementing a substantive rule.
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121. CARRP constitutes a substantive agency rule within the meaning of 5 U.S.C. § 551(4).
122. Defendants failed to provide a notice-and-comment period prior to the adoption of CARRP. Because CARRP is a substantive rule promulgated without the notice-and-comment period, it violates 5 U.S.C. § 553 and is therefore invalid.
123. As a result of these violations, Plaintiffs have suffered and continue to suffer injury in the form of unreasonable delays and unwarranted denials of their immigration applications.
COUNT V - FIFTH AMENDMENT (PROCEDURAL DUE PROCESS) (ALL PLAINTIFFS)
124. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.
125. Plaintiffs’ compliance with the statutory and regulatory requirements established in 8 U.S.C. § 1427 and 8 C.F.R. § 316.2 (for naturalization applicants), and in 8 U.S.C. § 1159 and 8 C.F.R. § 335.3 (for adjustment of status applicants), vests in them a constitutionally protected property and liberty interest.
126. This constitutionally-protected property or liberty interest triggers procedural due process protection.
127. Defendants’ failure to give Plaintiffs notice of their classification under CARRP, a meaningful explanation of the reason for such classification,
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and any process by which Plaintiffs can challenge their classification, violates the Due Process Clause of the Fifth Amendment to the United States Constitution.
128. Because of this violation, Plaintiffs have suffered and continue to suffer injury in the form of unreasonable delays and unwarranted denials of their immigration applications.
COUNT VI – PETITIONS FOR NATURALIZATION POST-EXAMINATION PLAINTIFFS
(ARAPI, ALWAN, SARWAR AND ABULFATHI) 129. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein. 130. Defendants have failed to finally adjudicate the applications of Plaintiffs Arapi, Always, Sarwar and Abulfathi, in violation of 8 U.S.C. § 1447(b). That provision of the INA requires Defendants to adjudicate naturalization within 120 days of the naturalization examination. Pursuant to 8 U.S.C. § 1447(b), this Court should exercise its authority to grant the applications of these four Plaintiffs. 131. Each named post-examination Plaintiff seeks a determination by the Court that he meets the requirements of naturalization and is to be naturalized as a U.S. citizen without further delay, pursuant to 8 U.S.C. § 1447(b).
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that the Court grant the following relief:
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1. Enter a judgment declaring that (a) CARRP violates the INA and its implementing regulations; Article 1, Section 8, Clause 4 of the United States Constitution; the Fifth Amendment to the United States Constitution; and the APA; and (b) Defendants violated the APA by adopting CARRP without promulgating a rule and following the process for notice and comment by the public;
2. Enjoin Defendants, their subordinates, agents, employees, and all others acting in concert with them from applying CARRP to the processing and adjudication of Plaintiffs’ immigration benefit applications;
3. Order Defendants to rescind CARRP because they failed to follow the process for notice and comment by the public;
4. Naturalize Plaintiffs Arapi, Always, Sarwar and Abulfathi; 5. Award Plaintiffs reasonable attorneys’ fees and costs under the Equal Access to Justice Act; and 6. Grant any other relief that this Court may deem fit and proper.
HACKING LAW PRACTICE, LLC /s/ James O. Hacking, III James O. Hacking, III, Mo. Bar. # 46728 34 N. Gore, Suite 101 St. Louis, MO 63119 Phone: (314) 961-8200 Fax: (314) 961-8201 Email: jim@hackinglawpractice.com
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 Case: 4:16-cv-00692-JAR Doc. #: 3 Filed: 06/21/16 Page: 1 of 35 PageID #: 53

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ERIOLA ARAPI (A# 062 776 361)

SAMINA SYED (A# 041 471 464)

WAFAA ALWAN (A# 212 166 955) SAQIB SARWAR (A# 059 821 029)

Case No. 4:16-CV-00692-JAR

MOHAMMAD A. AL MUTTAN (A# 098 049 220)

SYED ASGHAR ALI (A# 076 839 968)

IBRAHIM MOHAMED ZIDAN (A# 074 538 330)

HANAA B. KAYEM (A# 212 247 400)

ABUBAKAR AHMED ABULFATHI (A# 096 453 286)

MIRZETA TURSUNOVIC (A# 075 082 331)

AMINA TURSUNOVIC (A# 075 082 332)

MOHAMMAD S. JAUDA (A# 212 247 047)

MUSRATH JAHAN BAIG (A# 200 095 418)

ABDOLREZA OSOULI (A# 088 539 347)

MAHMOOD ALI MANSUR (A# 212 099 158)

SHARAFAT Y. MOHAMMAD (A# 061 005 285)

ADNAN H. SAWLAN (A# 079 016 306)

SORY IBRAHIM DOUMBIA (A# 200 249 834)

Case: 4:16-cv-00692-JAR Doc. #: 3 Filed: 06/21/16 Page: 2 of 35 PageID #: 54
NERMIN BUSEVAC (A# 075 047 559) ABDELSAMED ALAMIN (A# 060 758 663)
Plaintiffs,
vs.
U.S. CITIZENSHIP & IMMIGRATION SERVICES (“USCIS”),
JEH JOHNSON, in his official capacity as Secretary of Homeland Security;
LEON RODRIGUEZ, in his official capacity as Director of U.S. Citizenship and Immigration Services;
MATTHEW D. EMRICH, in his official capacity as Associate Director, Fraud Detection and National Security Directorate of U.S. Citizenship and Immigration Services;
DANIEL RENAUD, in his official capacity as Associate Director, Field Operations Directorate of U.S. Citizenship and Immigration Services;
DAVID DOUGLAS, in his official capacity as District Director of the Kansas City District Office, U.S. Citizenship and Immigration Services;
and,
CHESTER MOYER, in his official capacity as Director of St. Louis Field Office of the U.S. Citizenship and Immigration Services.
Defendants.
COMPLAINT FOR DECLARATORY AND INJUNCIVE RELIEF
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PETITIONS FOR NATURALIZATION 1. This lawsuit challenges the United States Citizenship and Immigration Service’s (“USCIS”) unlawful delay of Plaintiffs’ applications for citizenship under a secretive policy that has blacklisted Plaintiffs as “national security concerns,” when in fact they are not, and illegally prohibited them from upgrading their immigration status, despite their eligibility to do so. 2. Plaintiffs are law-abiding, long-time residents of the United States who meet the statutory criteria to be naturalized as American citizens. 3. Despite this, USCIS has refused adjudicated Plaintiffs’ applications in accordance with applicable legal criteria. Instead, USCIS has applied different rules under a policy known as the Controlled Application Review and Resolution Program (“CARRP”), which has resulted in the agency refusing to adjudicate Plaintiffs’ applications. 4. Plaintiffs bring this action to compel the USCIS to finally—after years of waiting—adjudicate their pending applications for naturalization as required by law. 5. The Constitution expressly assigns to Congress, not the executive branch, the authority to establish uniform rules of naturalization. The Immigration and Nationality Act (“INA”) sets forth such rules. 6. When these rules and requirements have been met, as they have been in Plaintiffs’ cases, USCIS is obligated to grant citizenship.
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7. Since 2008, however, USCIS has used CARRP—an internal policy that has neither been approved by Congress nor subjected to public notice and comment—to investigate and adjudicate applications deemed to present potential “national security concerns.”
8. CARRP prohibits USCIS field officers from approving an application with a potential “national security concern,” instead directing officers to deny the application or delay adjudication—often indefinitely—in violation of the INA.
9. CARRP’s definition of “national security concern” is far more expansive than the security-related ineligibility criteria for immigration applications set forth by Congress in the INA.
10. CARRP identifies “national security concerns” based on deeplyflawed and expansive government watchlists, and other vague and imprecise criteria that bear no relation to the security-related statutory ineligibility criteria.
11. The CARRP definition illegally brands innocent, law-abiding residents, like Plaintiffs—none of whom pose a security threat—as “national security concerns” on account of innocuous activity and associations, innuendo, suppositions and characteristics such as national origin.
12. Although the total number of people subject to CARRP is not known, USCIS data reveals that between FY2008 and FY2012, more than 19,000 people from twenty-one Muslim-majority countries or regions were subjected to CARRP.
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13. Due to CARRP, USCIS has not adjudicated Plaintiffs’ applications, as the law requires. Each Plaintiff has experienced an extraordinary processing delay of their case.
14. Although USCIS has thus far prevented Plaintiffs from becoming U.S. citizens , the agency has not notified Plaintiffs that it considers them potential “national security concerns,” provided the reasons why it classified them in this way, or afforded them any opportunity to address and correct any basis for USCIS’s concerns.
15. Plaintiffs therefore request that the Court enjoin USCIS from applying CARRP to their immigration applications and declare that CARRP violates the INA; Article 1, Section 8, Clause 4 of the United States Constitution (the naturalization clause); the Due Process Clause of the Fifth Amendment to the U.S. Constitution; and the Administrative Procedure Act (“APA”).
JURISDICTION AND VENUE 16. Plaintiffs allege violations of the INA, the APA, and the U.S. Constitution. This Court has subject matter jurisdiction under 28 U.S.C. § 1331 and 5 U.S.C. § 702 (waiver of federal government’s sovereign immunity). This Court also has authority to grant declaratory relief under 28 U.S.C. §§ 2201 and 2202, and injunctive relief under 5 U.S.C. § 702 and 28 U.S.C. § 1361. 17. Venue is proper in the Eastern District of Missouri under 28 U.S.C. §§ 1391(b) and 1391(e) because (1) Plaintiffs reside in this district; (2) a substantial part of the events giving rise to the claims occurred in this district; and
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(3) Plaintiffs sue Defendants in their official capacity as officers of the United States. Plaintiffs
18. Plaintiff Eriola Arapi (A# 062 776 361) is a twenty-three year old national of Albania and a lawful permanent resident (“LPR”) of the United States. She is married to a United States citizen and resides in St. Louis, Missouri. She applied for naturalization on or about July 10, 2015. Ms. Arapi appeared for interview on December 8, 2015. Even though she satisfies all statutory criteria for naturalization, USCIS subjected her application to CARRP, and as a result, has not finally adjudicated and approved it.
19. Plaintiff Samina Syed (A# 041 471 464) is a sixty-one year old national of Pakistan and a lawful permanent resident (“LPR”) of the United States. She resides in St. Louis, Missouri. She applied for naturalization on or about May 1, 2015. USCIS has thus far refused to interview Ms. Syed. Even though she satisfies all statutory criteria for naturalization, USCIS subjected her application to CARRP, and as a result, has not finally adjudicated and approved it.
20. Plaintiff Wafaa Alwan (A# 212 166 955) is a forty-nine year old national of Iraq and a lawful permanent resident (“LPR”) of the United States. She resides in St. Louis, Missouri. She applied for naturalization on December 17, 2014. Ms. Alwan appeared for interview on August 31, 2015. Even though she satisfies all statutory criteria for naturalization, USCIS subjected her
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application to CARRP, and as a result, has not finally adjudicated and approved it.
21. Plaintiff Saqib Sarwar (A# 059 821 029) is a twenty-nine year old national of Pakistan and a lawful permanent resident (“LPR”) of the United States. He resides in St. Louis, Missouri. He applied for naturalization on June 22, 2015. Mr. Sarwar appeared for interview on December 17, 2015. Even though he satisfies all statutory criteria for naturalization, USCIS subjected his application to CARRP, and as a result, has not finally adjudicated and approved it.
22. Plaintiff Mohammad A. Al Muttan (A# 098 049 220) is a thirty-four year old national of Palestine and a lawful permanent resident (“LPR”) of the United States. He is married to a U.S. citizen and resides in St. Louis, Missouri. He applied for naturalization on February 23, 2015. USCIS has thus far refused to interview Mr. Al Muttan. Even though he satisfies all statutory criteria for naturalization, USCIS subjected his application to CARRP, and as a result, has not finally adjudicated and approved it.
23. Plaintiff Syed Asghar Ali (A# 076 839 968) is a forty-seven year old national of Pakistan and a lawful permanent resident (“LPR”) of the United States. He resides in St. Louis, Missouri. He applied for naturalization on March 13, 2014. Mr. Ali was scheduled for an interview on April 14, 2014. USCIS unilaterally cancelled that interview and has refused to reschedule it despite the fact that two years have now passed. Even though he satisfies all statutory
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criteria for naturalization, USCIS subjected his application to CARRP, and as a result, has not finally adjudicated and approved it.
24. Plaintiff Ibrahim Mohamed Zidan (A# 074 538 330) is a forty-seven year old national of Egypt and a lawful permanent resident (“LPR”) of the United States. He resides in St. Louis, Missouri. He applied for naturalization on March 17, 2015. USCIS has thus far refused to interview Mr. Zidan. Even though he satisfies all statutory criteria for naturalization, USCIS subjected his application to CARRP, and as a result, has not finally adjudicated and approved it.
25. Plaintiff Hanaa B. Kayem (A# 212 247 400) is a fifty-one year old national of Iraq and a lawful permanent resident (“LPR”) of the United States. She resides in St. Louis, Missouri. She applied for naturalization on or about July 31, 2015. USCIS has thus far refused to interview Ms. Kayem. Even though she satisfies all statutory criteria for naturalization, USCIS subjected her application to CARRP, and as a result, has not finally adjudicated and approved it.
26. Plaintiff Abubakar Ahmed Abulfathi (A# 096 453 286) is a thirty-five year old national of Nigeria and a lawful permanent resident (“LPR”) of the United States. He resides in St. Louis, Missouri. He applied for naturalization on July 15, 2015. Mr. Abulfathi appeared for interview on January 4, 2016. Even though he satisfies all statutory criteria for naturalization, USCIS subjected his application to CARRP, and as a result, has not finally adjudicated and approved it.
27. Plaintiff Mirzeta Tursunovic (A# 075 082 331) is a thirty-eight year old national of Bosnia and a lawful permanent resident (“LPR”) of the United
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States. She resides in St. Louis, Missouri. She applied for naturalization on or about December 22, 2014. USCIS has thus far refused to interview Ms. Tursunovic. Even though she satisfies all statutory criteria for naturalization, USCIS subjected her application to CARRP, and as a result, has not finally adjudicated and approved it.
28. Plaintiff Amina Tursunovic (A# 075 082 332) is a nineteen year old national of Bosnia and a lawful permanent resident (“LPR”) of the United States. She resides in St. Louis, Missouri. Amina Tursunovic is the daughter of Plaintiff Mirzeta Tursunovic. Amina Tursunovic applied for naturalization on or about February 25, 2015. USCIS has thus far refused to interview Ms. Amina Tursunovic. Even though she satisfies all statutory criteria for naturalization, USCIS subjected her application to CARRP, and as a result, has not finally adjudicated and approved it.
29. Plaintiff Mohammad S. Jauda (A# 212 247 047) is a thirty-nine year old national of Iraq and a lawful permanent resident (“LPR”) of the United States. He resides in St. Louis, Missouri. He applied for naturalization on October 28, 2014. USCIS has thus far refused to interview Mr. Jauda. Even though he satisfies all statutory criteria for naturalization, USCIS subjected his application to CARRP, and as a result, has not finally adjudicated and approved it.
30. Plaintiff Musrath Jahan Baig (A# 200 095 418) is a forty-seven year old national of India and a lawful permanent resident (“LPR”) of the United States. She resides in High Ridge, Missouri. She applied for naturalization on
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January 16, 2015. USCIS initially scheduled Ms. Baig for a naturalization exam and interview on September 21, 2015 and then de-scheduled that appointment without explanation. USCIS has since refused to interview Ms. Baig. Even though she satisfies all statutory criteria for naturalization, USCIS subjected her application to CARRP, and as a result, has not finally adjudicated and approved it.
31. Plaintiff Abdolreza Osouli (A# 088 539 347) is a thirty-six year old national of Iran and a lawful permanent resident (“LPR”) of the United States. He resides in University City, Missouri. He applied for naturalization on July 25, 2015. USCIS has thus far refused to interview Mr. Osouli. Even though he satisfies all statutory criteria for naturalization, USCIS subjected his application to CARRP, and as a result, has not finally adjudicated and approved it.
32. Plaintiff Mahmood Ali Mansur (A# 212 099 158) is a sixty-two year old national of Iraq and a lawful permanent resident (“LPR”) of the United States. He resides in St. Louis, Missouri. He applied for naturalization on March 14, 2014. USCIS initially scheduled Mr. Mansur for a naturalization exam and interview on June 2, 2014 and then de-scheduled that appointment without explanation. USCIS has since refused to interview Mr. Mansur. Even though he satisfies all statutory criteria for naturalization, USCIS subjected her application to CARRP, and as a result, has not finally adjudicated and approved it.
33. Plaintiff Sharafat Y. Mohammad (A# 061 005 285) is a twenty-six year old national of Afghanistan and a lawful permanent resident (“LPR”) of the
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United States. She resides in Manchester, Missouri. She applied for naturalization on January 21, 2015. USCIS initially scheduled Ms. Baig for a naturalization exam and interview in June of 2015 and then de-scheduled that appointment without explanation. USCIS has since refused to interview Ms. Mohammad. Even though she satisfies all statutory criteria for naturalization, USCIS subjected her application to CARRP, and as a result, has not finally adjudicated and approved it.
34. Plaintiff Adnan H. Sawlan (A# 079 016 306) is a forty-six year old national of Yemn and a lawful permanent resident (“LPR”) of the United States. He resides in St. Louis, Missouri. He applied for naturalization on January 9, 2015, based on his marriage to a U.S. citizen. USCIS obtained Mr. Sawlan’s fingerprints but never scheduled him for interview. USCIS has since refused to adjudicate Mr. Sawlan’s application. Accordingly, Mr. Sawlan filed a second application not based on his marriage to a U.S. citizen but that application has also not been adjudicated. Even though he satisfies all statutory criteria for naturalization, USCIS subjected his application to CARRP, and as a result, has not finally adjudicated and approved it.
35. Plaintiff Sory Ibrahim Doumbia (A# 200 249 834) is a thirty year old national of Mali and a lawful permanent resident (“LPR”) of the United States. He resides in St. Louis, Missouri. He applied for naturalization on March 21, 2015. USCIS interviewed Mr. Doumbia for a naturalization exam and interview on July 23, 2015. The interviewing officer requested additional documentation from Mr.
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Doumbia which he fully provided. USCIS has since refused to adjudicate Mr. Doumbia’s application, claiming that the case is under “supervisor review.” Even though he satisfies all statutory criteria for naturalization, USCIS subjected his application to CARRP, and as a result, has not finally adjudicated and approved it.
36. Plaintiff Nermin Busevac (A# 075 047 559) is a thirty-seven year old national of Bosnia and a lawful permanent resident (“LPR”) of the United States. He resides in St. Louis, Missouri. He applied for naturalization on February 27, 2015. USCIS met with Mr. Busevac for a naturalization exam and interview on June 30, 2015. On September 23, 2015, USCIS issued an initial denial of Mr. Busevac’s N-400. Mr. Busevac filed a timely appeal of that initial denial and a hearing was held on that appeal on March 21, 2016. Even though he satisfies all statutory criteria for naturalization, USCIS subjected his application to CARRP, and as a result, has not finally adjudicated and approved it.
37. Plaintiff Abdelsamed Al Amin (A# 060 758 663) is a forty-five year old national of Sudan and a lawful permanent resident (“LPR”) of the United States. He resides in St. Louis, Missouri. He applied for naturalization on March 23, 2015. USCIS met with Mr. Al Amin for a naturalization exam and interview on July 21, 2015. On September 22, 2015, USCIS issued an initial denial of Mr. AlAmin’s N-400. Mr. Al-Amin filed a timely appeal of that initial denial and a hearing was held on that appeal on December 21, 2015. Even though he
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satisfies all statutory criteria for naturalization, USCIS subjected his application to CARRP, and as a result, has not finally adjudicated and approved it.
38. Plaintiffs have suffered and continue to suffer prejudice from the unreasonable delay of their naturalization. While they await adjudication of their respective applications, Plaintiffs are deprived of the substantial and unique rights and duties of U.S. citizenship, including the right to vote, to hold public office, to travel on a U.S. passport and other benefits of citizenship. The delay in citizenship is of additional concern given the fact that 2016 is an election year and the deadline for registering to vote in the November general election is October 12, 2016. Defendants
39. Defendant USCIS is a component of the Department of Homeland Security (“DHS”), and is charged with overseeing lawful immigration to the United States and the naturalization of LPRs as U.S. citizens. USCIS implements federal law and policy with respect to immigration applications.
40. Defendant Jeh Johnson is the Secretary of DHS, the department under which USCIS and several other immigration agencies operate. Accordingly, Secretary Johnson has supervisory responsibility over USCIS. Plaintiffs sue Defendant Johnson in his official capacity.
41. Defendant Leon Rodriguez is the Director of USCIS. Director Rodriguez establishes and implements naturalization and other immigration
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applications policy for USCIS and its subdivisions, including the illegal CARRP program. Plaintiffs sue Defendant Rodriguez in his official capacity.
42. Defendant Matthew D. Emrich is the Associate Director of the Fraud Detection and National Security Directorate of USCIS (“FDNS”), which is ultimately responsible for determining whether individuals or organizations filing naturalization and other immigration applications pose a threat to national security, public safety, or the integrity of the nation’s legal immigration system. Associate Director Emrich establishes and implements policy for FDNS, including CARRP. Plaintiffs sue Defendant Emrich in her official capacity.
43. Defendant Daniel Renaud is the Associate Director of the Field Operations Directorate of USCIS, which is responsible for and oversees the processing and adjudication of immigration applications through the USCIS field offices and the National Benefits Center. Plaintiffs sue Defendant Renaud in his official capacity.
44. Defendant David Douglas is the District Director for District 15, Kansas City District Office of USCIS, which has responsibility for the St. Louis Field Office. District Director Douglas has been delegated the authority to adjudicate immigration applications filed within his district and is responsible for the adjudication of Plaintiffs’ applications. Plaintiffs sue Defendant Douglas in his official capacity.
45. Defendant Chester Moyer is the Field Office Director for the St. Louis Field Office of USCIS. He is the official in charge of the field office
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assigned to conduct interviews on Plaintiffs’ naturalization applications and he is responsible for the adjudication of their applications. Plaintiffs sue Defendant Moyer in his official capacity.
PERMISSIVE JOINDER 46. Plaintiffs bring this action jointly pursuant to Federal Rule of Civil Procedure 20, which allows for permissive joinder. Rule 20 provides that “persons may join in one action as plaintiffs if (A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all plaintiffs will arise in the action.” FED. R. CIV. P. 20(a). 47. This action arises out of the same transaction or occurrence, or series of transactions or occurrences, in that the unlawful delays challenged are the result of the same pattern or practice by Defendants of unreasonably and unlawfully delaying the adjudication of applications for naturalization based on the CARRP program. This action also raises common issues of law and fact. As a factual matter, Plaintiffs are similarly situated. All have submitted applications for naturalization, are eligible for naturalization, and have been awaiting adjudication on their applications for more than a year for their naturalization.
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Plaintiffs have been told or have reason to believe that the sole reason for the delay is pendency of the “background” or “security” checks.
48. As a factual and legal matter, Plaintiffs allege that they have been injured by the same pattern or practice by Defendants of unlawfully and unreasonably delaying adjudication of their applications. Plaintiffs allege that Defendants’ unlawful delay is based on the illegal and unauthorized CARRP program described below.
49. In addition, Plaintiffs allege similar harms from the delay of their naturalization applications, including, but not limited to, the inability to participate in civic society by voting, delays in family reunification, the inability to apply for jobs that require U.S. citizenship, and the anxiety of having an uncertain status in the country they have made their home and where they have established themselves as part of a community.
50. Lastly, Plaintiffs jointly seek the same legal remedies: a declaration that Defendants have engaged in unreasonable and extraordinary delay in adjudicating Plaintiffs’ naturalization applications; an order compelling Defendants to complete the Plaintiffs’ applications, and adjudicate Plaintiffs’ applications for naturalization, within 45 days of the Court’s order; an order enjoining Defendants to take eliminate and dismantle the CARRP program; for attorneys’ fees; and, for such further relief set forth below in Plaintiffs’ prayer
51. This action thus satisfies the requirements for permissive joinder. It involves the same transaction (Defendants’ unlawful policies, patterns and
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practices); and common questions of law and fact (regarding the lawfulness of Defendants’ actions). Permissive joinder of these Plaintiffs, rather than multiple individual actions raising the same factual and legal allegations, would serve the purpose of Rule 20 by promoting judicial efficiency.
LEGAL FRAMEWORK 52. To naturalize as a U.S. citizen, an applicant must satisfy certain eligibility criteria under the INA and its implementing regulations. See 8 U.S.C. §§ 1421-27, 1458; 8 C.F.R. §§ 316.1-316.14.28. 53. Applicants must prove that they are “at least 18 years of age,” 8 C.F.R. § 316.2(a)(1); have “resided continuously, after being lawfully admitted” in the United States “for at least five years” (or three years if married to a U.S. citizen); and have been “physically present” in the United States for “at least half of that time.” 8 U.S.C. § 1427(a)(1). 54. Applicants must also demonstrate “good moral character” for the five years preceding the date of application, “attach[ment] to the principles of the Constitution of the United States, and favorabl[e] dispos[ition] toward the good order and happiness of the United States . . . .” 8 C.F.R. § 316.2(a)(7). 55. An applicant is presumed to possess the requisite “good moral character” for naturalization unless, during the five years preceding the date of the application, they are found (1) to be a habitual drunkard, (2) to have committed certain drug-related offenses, (3) to be a gambler whose income
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derives principally from gambling or has been convicted of two or more gambling offenses, (4) to have given false testimony for the purpose of obtaining immigration benefits; or if the applicant (5) has been convicted and confined to a penal institution for an aggregate period of 180 days or more, (6) has been convicted of an aggravated felony, or (7) has engaged in conduct such as aiding Nazi persecution or participating in genocide, torture, or extrajudicial killings. 8 U.S.C. § 1101(f)(6).
56. An applicant is barred from naturalizing for national security-related reasons in circumstances limited to those codified in 8 U.S.C. § 1424, including, inter alia, if the applicant has advocated, is affiliated with any organization that advocates, or writes or distributes information that advocates “the overthrow by force or violence or other unconstitutional means of the Government of the United States,” the “duty, necessity, or propriety of the unlawful assaulting or killing of any officer . . . of the Government of the United States,” or “the unlawful damage, injury, or destruction of property.”
57. Once an individual submits an application, USCIS conducts a background investigation, see 8 U.S.C. § 1446(a); 8 C.F.R. § 335.1, which includes a full FBI criminal background check, see 8 C.F.R. § 335.2.
58. After completing the background investigation, USCIS schedules a naturalization examination at which the applicant meets with a USCIS examiner for an interview.
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59. In order to avoid inordinate processing delays and backlogs, Congress has stated “that the processing of an immigration benefit application,” which includes naturalization, “should be completed not later than 180 days after the initial filing of the application.” 8 U.S.C. § 1571(b). USCIS must either grant or deny a naturalization application within 120 days of the date of the examination. 8 C.F.R. § 335.3.
60. If the applicant has complied with all requirements for naturalization, federal regulations state that USCIS “shall grant the application.” 8 C.F.R. § 335.3(a) (emphasis added).
61. Courts have long recognized that “Congress is given power by the Constitution to establish an uniform Rule of Naturalization. . . . And when it establishes such uniform rule, those who come within its provisions are entitled to the benefit thereof as a matter of right. . . .” Schwab v. Coleman, 145 F.2d 672, 676 (4th Cir. 1944) (emphasis added); see also Marcantonio v. United States, 185 F.2d 934, 937 (4th Cir. 1950) (“The opportunity having been conferred by the Naturalization Act, there is a statutory right in the alien to submit his petition and evidence to a court, to have that tribunal pass upon them, and, if the requisite facts are established, to receive the certificate.” (quoting Tutun v. United States, 270 U.S. 568, 578 (1926))).
62. Once an application is granted, the applicant is sworn in to be sworn in as a U.S. citizen.
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Controlled Application Review and Resolution Program 63. In April 2008, USCIS created CARRP, an agency-wide policy for
identifying, processing, and adjudicating immigration applications that raise “national security concerns.”
64. Upon information and belief, prior to CARRP’s enactment, USCIS simply delayed the adjudication of many immigration applications that raised possible “national security concerns,” in part due to backlogs created by the FBI Name Check.
65. Congress did not enact CARRP, and USCIS did not promulgate it as a proposed rule with the notice-and-comment procedures mandated by the APA. See 5 U.S.C. § 553(b)-(c).
66. Since CARRP’s inception, USCIS has not made information about CARRP available to the public, except in response to Freedom of Information Act (“FOIA”) requests and litigation to compel responses to those requests. In fact, the program was unknown to the public, including applicants for immigration benefits, until it was discovered in litigation challenging an unlawful denial of naturalization and then through the government’s response to a FOIA request.
67. CARRP directs USCIS officers to screen immigration applications— including applications for asylum, visas, lawful permanent residency, and naturalization—for “national security concerns.”
68. If a USCIS officer determines that an application presents a “national security concern,” it takes the application off a “routine adjudication” track and—
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without notifying the applicant—places it on a CARRP adjudication track where it is subject to procedures and criteria unique to CARRP that result in lengthy delays and prohibit approvals, except in limited circumstances, regardless of an applicant’s statutory eligibility. CARRP’s Definition of a “National Security Concern”
69. According to the unauthorized CARRP definition utilized by Defendants, a “national security concern” arises when “an individual or organization [that] has been determined to have an articulable link”—no matter how attenuated or unsubstantiated—“to prior, current, or planned involvement in, or association with, an activity, individual, or organization described in sections 212(a)(3)(A), (B), or (F), or 237(a)(4)(A) or (B) of the Immigration and Nationality Act.” Those sections of the INA make inadmissible or removable any individual who, inter alia, “has engaged in terrorist activity” or is a member of a “terrorist organization.”
70. For the reasons described herein, an individual need not be actually suspected of engaging in any unlawful activity or joining any forbidden organization to be branded a “national security concern” under CARRP.
71. CARRP purportedly distinguishes between two types of “national security concerns”: those ostensibly involving “Known or Suspected Terrorists” (“KSTs”), and those ostensibly involving “non-Known or Suspected Terrorists” (“non-KSTs”).
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72. USCIS automatically considers an applicant a KST, and thus a “national security concern,” if his or her name appears in the Terrorist Screening Database (“TSDB”) (also referred to as the Terrorist Watch List). USCIS, therefore, applies CARRP to any applicant whose name appears in the TSDB, regardless as to whether they actually belong on the list.
73. Upon information and belief, the TSDB includes as many as one million names, many of whom present no threat to the United States.
74. The government’s recently disclosed criteria for watchlist nominations, known as the Watchlisting Guidance, impermissible allows nonU.S. citizens, including LPRs, to be listed in the TSDB even where the government does not have “reasonable suspicion” of involvement with terrorist activity.
75. The Guidance permits the watchlisting of non-citizens and LPRs simply for being associated with someone else who has been watchlisted, even when any involvement with that person’s purportedly suspicious activity is unknown.
76. The Guidance further provides that non-citizens and LPRs may be watchlisted based on fragmentary or uncorroborated information, or information of “suspected reliability.” These extremely loose standards significantly increase the likelihood that the TSDB contains information on individuals who are neither known nor appropriately suspected terrorists.
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77. To make matters worse, the Terrorist Screening Center (“TSC”), which maintains the TSDB, has failed to ensure that innocent individuals are not watchlisted or are promptly removed from watchlists.
78. In the year 2013, the watchlisting community nominated 468,749 individuals to the TSDB, and the TSC rejected only approximately one percent of those nominations.
79. In 2009, the Government Accountability Office found that 35 percent of the nominations to the TSDB were outdated, and that tens of thousands of names had been placed on the list without an adequate factual basis.
80. The Inspector General of the Department of Justice has criticized the Terrorist Screening Center, which maintains the TSDB, for employing weak quality assurance mechanisms and for failing to remove subjects from the TSDB when information no longer supports their inclusion. Public reports also confirm that the government has nominated or kept people on government watchlists as a result of human error.
81. The federal government’s official policy is to refuse to confirm or deny give individuals’ inclusion in the TSDB or provide a meaningful opportunity to challenge that inclusion.
82. Nevertheless, individuals can become aware of their inclusion due to air travel experiences. In particular, individuals may learn that they are on the “Selectee List,” a subset of the TSDB, if they have the code “SSSS” listed on their boarding passes. They may also learn of their inclusion in the TSDB if U.S.
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federal agents regularly subject them to secondary inspection when they enter the United States from abroad or when boarding a flight over U.S. airspace. Such individuals are also often unable to check in for flights online or at airline electronic kiosks at the airport.
83. Where the KST designation does not apply, CARRP instructs officers to look for “indicators” of a “non-Known or Suspected Terrorist” (“nonKST”) concern.
84. These indicators fall into three categories: (1) statutory indicators; (2) non-statutory indicators; and (3) indicators contained in security check results.
85. “Statutory indicators” of a “national security concern” arise when an individual generally meets the definitions described in Sections 212(a)(3)(A), (B), and (F), and 237(a)(4)(A) and (B) of the INA (codified at 8 U.S.C. § 1182(a)(3)(A), (B), and (F) and § 1227(a)(4)(A) and (B)), which list the security and terrorism grounds of inadmissibility and removability.
86. However, CARRP expressly defines statutory indicators of a “national security concern” more broadly than the statute, stating “the facts of the case do not need to satisfy the legal standard used in determining admissibility or removability” under those provisions of the INA to give rise to a “non-KST” “national security concern.” This is illegal and contrary to law.
87. For example, CARRP specifically directs USCIS officers to look at evidence of charitable donations to organizations later designated as financiers of terrorism by the U.S. Treasury Department and to construe such donations as
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evidence of a “national security concern,” even if an individual had made such donations without any knowledge or any reasonable way of knowing that the organization was allegedly engaged in proscribed activity. Such conduct would not make an applicant inadmissible for a visa or lawful permanent resident status under the statute, see INA § 212(a)(3)(B), 8 U.S.C. § 1182(a)(3)(B), nor does it have any bearing on a naturalization application.
88. “Non-statutory indicators” of a “national security concern” include “travel through or residence in areas of known terrorist activity”; “large scale transfer or receipt of funds”; a person’s employment, training, or government affiliations; the identities of a person’s family members or close associates, such as a “roommate, co-worker, employee, owner, partner, affiliate, or friend”; or simply “other suspicious activities.”
89. Finally, security check results are considered indicators of a “national security concern” in instances where, for example, the FBI Name Check—one of many security checks utilized by USCIS—produces a positive hit on an applicant’s name and the applicant’s name is associated with a national security related investigatory file. Upon information and belief, this indicator leads USCIS to label applicants “national security concerns” solely because their names appear in a law enforcement or intelligence file, even if they were never the subject of an investigation.
90. Thus, an applicant’s name could appear in a law enforcement file in connection with a national security investigation because he or she once gave a
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voluntary interview to an FBI agent, he or she attended a mosque that was the subject of FBI surveillance, or he or she knew or was associated with someone under investigation.
91. Upon information and belief, CARRP labels applicants “national security concerns” based on vague and overbroad criteria that often turn on lawful activity, national origin, and innocuous associations. These criteria are untethered from the statutory criteria that determine whether or not a person is eligible for the immigration status they seek, and are so general that they necessarily ensnare individuals who pose no threat to the security of the United States. Delay and Denial
92. Once a USCIS officer identifies a CARRP-defined “national security concern,” the application is subjected to CARRP’s rules and procedures that guide officers to deny such applications or, if an officer cannot find a basis to deny the application, to delay adjudication as long as possible.
93. One such procedure is called “deconfliction,” which requires USCIS to coordinate with—and, upon information and belief, subordinate its authority to—the law enforcement agency, often the FBI, that possesses information giving rise to the supposed national security concern.
94. During deconfliction, the relevant law enforcement agency has authority to instruct USCIS to ask certain questions in an interview or to issue a Request for Evidence (“RFE”); to comment on a proposed decision on the
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benefit; and to request that an application be denied, granted, or held in abeyance for an indefinite period of time.
95. Upon information and belief, deconfliction not only allows law enforcement or intelligence agencies to directly affect the adjudication of a requested immigration benefit, but also results in independent interrogations of the immigration applicant—or the applicant’s friends and family—by agencies such as the FBI.
96. Upon information and belief, USCIS often makes decisions to deny immigration applications because the FBI requests or recommends the denial, not because the person was statutorily ineligible for the benefit. The FBI often requests that USCIS hold or deny an application not because the applicant poses a threat, but because it seeks to use the pending immigration application to coerce the applicant to act as an informant or otherwise provide information.
97. In addition to “deconfliction,” once officers identify an applicant as a “national security concern,” CARRP directs officers to perform an “eligibility assessment” to determine whether the applicant is eligible for the benefit sought.
98. Upon information and belief, at this stage, CARRP instructs officers to look for any possible reason to deny an application so that “valuable time and resources are not unnecessarily expended” to investigate the possible “national security concern.” Where no legitimate reason supports denial of an application subjected to CARRP, USCIS officers often invent false or pretextual reasons to deny the application.
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99. Upon information and belief, if, after performing the eligibility assessment, an officer cannot find a reason to deny an application, CARRP instructs officers to first “internally vet” the “national security concern” using information available in DHS systems and databases, open source information, review of the applicant’s file, RFEs, and interviews or site visits.
100. After conducting the eligibility assessment and internal vetting, USCIS officers are instructed to again conduct “deconfliction” to determine the position of any interested law enforcement agency.
101. If the “national security concern” remains and the officer cannot find a basis to deny the benefit, the application then proceeds to “external vetting.”
102. During “external vetting,” USCIS instructs officers to confirm the existence of the “national security concern” with the law enforcement or intelligence agency that possesses the information that created the concern and obtain additional information from that agency about the concern and its relevance to the individual.
103. CARRP authorizes USCIS officers to hold applications in abeyance for periods of 180 days to enable law enforcement agents and USCIS officers to investigate the “national security concern.” The Field Office Director may extend the abeyance periods so long as the investigation remains open.
104. Upon information and belief, CARRP provides no outer limit on how long USCIS may hold a case in abeyance, even though the INA requires USCIS to adjudicate a naturalization application within 120 days of examination, 8
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C.F.R. § 335.3, and Congress has made clear its intent that USCIS adjudicate immigration applications, including for naturalization and lawful permanent residence, within 180 days of filing the application. 8 U.S.C. § 1571(b).
105. When USCIS considers an applicant to be a KST “national security concern,” CARRP forbids USCIS field officers from granting the requested benefit even if the applicant satisfies all statutory and regulatory criteria.
106. When USCIS considers an applicant to be a non-KST “national security concern,” CARRP forbids USCIS field officers from granting the requested benefit in the absence of supervisory approval and concurrence from a senior level USCIS official.
107. In Hamdi v. USCIS, 2012 WL 632397, when asked whether USCIS’s decision to brand naturalization applicant Tarek Hamdi as a “national security concern” affected whether he was eligible for naturalization, a USCIS witness testified at deposition that “it doesn’t make him statutorily ineligible, but because he is a—he still has a national security concern, it affects whether or not we can approve him.” The witness testified that, under CARRP, “until [the] national security concern [is] resolved, he won’t get approved.”
108. Upon information and belief, USCIS often delays adjudication of applications subject to CARRP when it cannot find a reason to deny the application. When an applicant files a mandamus action to compel USCIS to finally adjudicate his or her pending application, it often has the effect of forcing
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USCIS to deny a statutorily-eligible application because CARRP prevents agency field officers from granting an application involving a “national security concern.”
109. CARRP effectively creates two substantive regimes for immigration application processing and adjudication: one for those applications subject to CARRP and one for all other applications. CARRP rules and procedures create substantive eligibility criteria that exclude applicants from immigration benefits to which they are entitled by law.
110. At no point during the CARRP process is the applicant made aware that he or she has been labeled a “national security concern,” nor is the applicant ever provided with an opportunity to respond to and contest the classification.
111. Upon information and belief, CARRP results in extraordinary processing and adjudication delays, often lasting many years, and baseless denials of statutorily-eligible immigration applications.
COUNT I - IMMIGRATION & NATIONALITY ACT AND IMPLEMENTING REGULATIONS (ALL PLAINTIFFS)
112. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.
113. To secure naturalization, an applicant must satisfy certain statutorily -enumerated criteria.
114. By its terms, CARRP creates additional, non-statutory, substantive criteria that must be met prior to a grant of a naturalization application.
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115. Accordingly, CARRP violates 8 U.S.C. § 1427, 8 C.F.R. § 316.2, and 8 C.F.R. § 335.3, as those provisions set forth the exclusive applicable statutory and regulatory criteria for a grant of naturalization.
116. Because of this violation and because CARRP’s additional, nonstatutory, substantive criteria have been applied to Plaintiffs, Plaintiffs have suffered and continue to suffer injury in the form of unreasonable delays and unwarranted denials of their applications for naturalization.
COUNT II - UNIFORM RULE OF NATURALIZATION (ALL PLAINTIFFS)
117. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.
118. Congress has the sole power to establish criteria for naturalization, and any additional requirements, not enacted by Congress, are ultra vires.
119. By its terms, CARRP creates additional, non-statutory, substantive criteria that must be met prior to a grant of a naturalization application.
120. Accordingly, CARRP violates Article I, Section 8, Clause 4 of the United States Constitution.
121. Because of this violation and because CARRP’s additional, nonstatutory, substantive criteria have been applied to Plaintiffs, all Plaintiffs have suffered and continue to suffer injury in the form of unreasonable delays and unwarranted denials of their naturalization applications.
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COUNT III - ADMINISTRATIVE PROCEDURE ACT (5 U.S.C. § 706) (ALL PLAINTIFFS)
122. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.
123. CARRP constitutes final agency action that is arbitrary and capricious because it “neither focuses on nor relates to a [non-citizen’s] fitness to” obtain the immigration benefits subject to its terms. Judulang v. Holder, 132 S. Ct. 476, 485 (2011).
124. CARRP is also not in accordance with law, is contrary to constitutional rights, and is in excess of statutory authority because it violates the INA and exceeds USCIS’s statutory authority to implement (not create) the immigration laws, as alleged herein.
125. As a result of these violations, Plaintiffs have suffered and continue to suffer injury in the form of unreasonable delays and unwarranted denials of their immigration applications. COUNT IV - ADMINISTRATIVE PROCEDURE ACT (NOTICE AND COMMENT)
(ALL PLAINTIFFS) 126. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein. 127. The APA, 5 U.S.C. § 553, requires administrative agencies to provide a notice-and-comment period prior to implementing a substantive rule.
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128. CARRP constitutes a substantive agency rule within the meaning of 5 U.S.C. § 551(4).
129. Defendants failed to provide a notice-and-comment period prior to the adoption of CARRP. Because CARRP is a substantive rule promulgated without the notice-and-comment period, it violates 5 U.S.C. § 553 and is therefore invalid.
130. As a result of these violations, Plaintiffs have suffered and continue to suffer injury in the form of unreasonable delays and unwarranted denials of their immigration applications.
COUNT V - FIFTH AMENDMENT (PROCEDURAL DUE PROCESS) (ALL PLAINTIFFS)
131. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.
132. Plaintiffs’ compliance with the statutory and regulatory requirements established in 8 U.S.C. § 1427 and 8 C.F.R. § 316.2 (for naturalization applicants), and in 8 U.S.C. § 1159 and 8 C.F.R. § 335.3 (for adjustment of status applicants), vests in them a constitutionally protected property and liberty interest.
133. This constitutionally-protected property or liberty interest triggers procedural due process protection.
134. Defendants’ failure to give Plaintiffs notice of their classification under CARRP, a meaningful explanation of the reason for such classification,
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and any process by which Plaintiffs can challenge their classification, violates the Due Process Clause of the Fifth Amendment to the United States Constitution.
135. Because of this violation, Plaintiffs have suffered and continue to suffer injury in the form of unreasonable delays and unwarranted denials of their immigration applications.
COUNT VI – PETITIONS FOR NATURALIZATION POST-EXAMINATION PLAINTIFFS
(ARAPI, ALWAN, SARWAR AND ABULFATHI) 136. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein. 137. Defendants have failed to finally adjudicate the applications of Plaintiffs Arapi, Always, Sarwar and Abulfathi, in violation of 8 U.S.C. § 1447(b). That provision of the INA requires Defendants to adjudicate naturalization within 120 days of the naturalization examination. Pursuant to 8 U.S.C. § 1447(b), this Court should exercise its authority to grant the applications of these four Plaintiffs. 138. Each named post-examination Plaintiff seeks a determination by the Court that he meets the requirements of naturalization and is to be naturalized as a U.S. citizen without further delay, pursuant to 8 U.S.C. § 1447(b).
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that the Court grant the following relief:
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1. Enter a judgment declaring that (a) CARRP violates the INA and its implementing regulations; Article 1, Section 8, Clause 4 of the United States Constitution; the Fifth Amendment to the United States Constitution; and the APA; and (b) Defendants violated the APA by adopting CARRP without promulgating a rule and following the process for notice and comment by the public;
2. Enjoin Defendants, their subordinates, agents, employees, and all others acting in concert with them from applying CARRP to the processing and adjudication of Plaintiffs’ immigration benefit applications;
3. Order Defendants to rescind CARRP because they failed to follow the process for notice and comment by the public;
4. Naturalize Plaintiffs Arapi, Always, Sarwar and Abulfathi; 5. Award Plaintiffs reasonable attorneys’ fees and costs under the Equal Access to Justice Act; and 6. Grant any other relief that this Court may deem fit and proper.
HACKING LAW PRACTICE, LLC /s/ James O. Hacking, III James O. Hacking, III, Mo. Bar. # 46728 34 N. Gore, Suite 101 St. Louis, MO 63119 Phone: (314) 961-8200 Fax: (314) 961-8201 Email: jim@hackinglawpractice.com
- 35 -

 
 Case: 4:16-cv-00692-JAR Doc. #: 12 Filed: 08/28/16 Page: 1 of 2 PageID #: 102

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ERIOLA ARAPI, et al. Plaintiffs,
vs.
U.S. CITIZENSHIP & IMMIGRATION SERVICES (“USCIS”), et al.
Defendants.

Case No. 4:16-CV-00692-JAR

RULE 41(a) NOTICE OF VOLUNTARY DISMISSAL OF CLAIMS BY CERTAIN PLAINTIFFS
Since Plaintiffs filed the present lawsuit, USCIS has issued final decisions on the long-pending N-400s of the following plaintiffs: Eriola Arapi, Saqib Sarwar, Syed Asghar Ali, Hanaa B. Kayem, Mohammad S. Jauda, Musrath Jahan Baig, Mahmood Ali Mansur, Sory Ibrahim Doumbia, Nermin Busevac and Abdelsamed Alamin. Pursuant to Fed. R. Civ. P. 41(a), these Plaintiffs respectfully dismiss their claims against the Defendants at this time. Said dismissal applies to these Plaintiffs only. The claims of the remaining Plaintiffs are ongoing.

HACKING LAW PRACTICE, LLC
/s/ James O. Hacking, III James O. Hacking, III, Mo. Bar. # 46728 34 N. Gore, Suite 101 St. Louis, MO 63119 Phone: (314) 961-8200 Fax: (314) 961-8201 Email: jim@hackinglawpractice.com

Case: 4:16-cv-00692-JAR Doc. #: 12 Filed: 08/28/16 Page: 2 of 2 PageID #: 103

CERTIFICATE OF SERVICE

I hereby certify that on August 28, 2016, the foregoing was served via operation of the Court’s CM/ECF system upon the following counsel of record for Respondents:

Ms. Jane Rund Assistant United States Attorney 111 South Tenth Street Room 20.333 St. Louis, Missouri 63102 Tel: (314) 539-7636 Fax: (314) 539-2287 jane.rund@usdoj.gov

Mr. Christopher Hollis Trial Attorney U.S. Department of Justice Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Tel: (202) 305-0899; 616-8962 (Fax) christopher.hollis@usdoj.gov

/s/ James O. Hacking, III

- 2 -

 
 Case: 4:16-cv-00692-JAR Doc. #: 16 Filed: 09/17/16 Page: 1 of 2 PageID #: 111

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ERIOLA ARAPI, et al. Plaintiffs,
vs.
U.S. CITIZENSHIP & IMMIGRATION SERVICES (“USCIS”), et al.
Defendants.

Case No. 4:16-CV-00692-JAR

SECOND RULE 41(a) NOTICE OF VOLUNTARY DISMISSAL OF CLAIMS BY CERTAIN PLAINTIFFS
Since the filing of this lawsuit, the Defendants have scheduled Plaintiffs Samina Syed, Abdolreza Osouli and Amina Tursunovic for naturalization interviews. Each Plaintiff has been approved for citizenship and is scheduled for naturalization on September 30, 2016.
In addition, Plaintiff Sharafat Mohammad has withdrawn her N-400 Application for Naturalization.
Pursuant to Fed. R. Civ. P. 41(a), these four Plaintiffs - Samina Syed, Abdolreza Osouli, Amina Tursunovic and Sharafat Mohammad – respectfully dismiss their claims against the Defendants at this time. Said dismissal applies to these Plaintiffs only. The claims of the remaining Plaintiffs are ongoing.

Case: 4:16-cv-00692-JAR Doc. #: 16 Filed: 09/17/16 Page: 2 of 2 PageID #: 112

HACKING LAW PRACTICE, LLC
/s/ James O. Hacking, III James O. Hacking, III, Mo. Bar. # 46728 34 N. Gore, Suite 101 St. Louis, MO 63119 Phone: (314) 961-8200 Fax: (314) 961-8201 Email: jim@hackinglawpractice.com

CERTIFICATE OF SERVICE

I hereby certify that on September 17, 2016, the foregoing was served via operation of the Court’s CM/ECF system upon the following counsel of record for Respondents:

Ms. Jane Rund Assistant United States Attorney 111 South Tenth Street Room 20.333 St. Louis, Missouri 63102 Tel: (314) 539-7636 Fax: (314) 539-2287 jane.rund@usdoj.gov

Mr. Christopher Hollis Trial Attorney U.S. Department of Justice Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Tel: (202) 305-0899; 616-8962 (Fax) christopher.hollis@usdoj.gov

/s/ James O. Hacking, III

- 2 -

 
 Case: 4:16-cv-00692-JAR Doc. #: 20 Filed: 12/08/16 Page: 1 of 2 PageID #: 119

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ERIOLA ARAPI, et al. Plaintiffs,
vs.
U.S. CITIZENSHIP & IMMIGRATION SERVICES (“USCIS”), et al.
Defendants.

Case No. 4:16-CV-00692-JAR

THIRD RULE 41(a) NOTICE OF VOLUNTARY DISMISSAL OF CLAIMS BY CERTAIN PLAINTIFFS
Since the most recent dismissal of certain Plaintiffs from this lawsuit, the Defendants have granted the naturalization applications of Ibrahim Mohamed Zidan, Abubakar Ahmed Abulfathi and Mirzeta Tursunovic. The Defendants have denied the naturalization applications of Mohammad A. Al Muttan and Adnan H. Sawlan.
Pursuant to Fed. R. Civ. P. 41(a), Plaintiffs Ibrahim Mohamed Zidan, Abubakar Ahmed Abulfathi, Mirzeta Tursunovic, Mohammad A. Al Muttan and Adnan H. Sawlan hereby dismiss their claims as the Defendants have finally acted.
The claim of one remaining Plaintiff, Ms. Wafaa Alwan, remains in dispute. Plaintiff Wafaa Alwan expressly does not dismiss her claims at this time.

Case: 4:16-cv-00692-JAR Doc. #: 20 Filed: 12/08/16 Page: 2 of 2 PageID #: 120

HACKING LAW PRACTICE, LLC
/s/ James O. Hacking, III James O. Hacking, III, Mo. Bar. # 46728 34 N. Gore, Suite 101 St. Louis, MO 63119 Phone: (314) 961-8200 Fax: (314) 961-8201 Email: jim@hackinglawpractice.com

CERTIFICATE OF SERVICE

I hereby certify that on December 8, 2016, the foregoing was served via operation of the Court’s CM/ECF system upon the following counsel of record for Respondents:

Ms. Jane Rund Assistant United States Attorney 111 South Tenth Street Room 20.333 St. Louis, Missouri 63102 Tel: (314) 539-7636 Fax: (314) 539-2287 jane.rund@usdoj.gov

Mr. Christopher Hollis Trial Attorney U.S. Department of Justice Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Tel: (202) 305-0899; 616-8962 (Fax) christopher.hollis@usdoj.gov

/s/ James O. Hacking, III

- 2 -

 
 Case: 4:16-cv-00692-JAR Doc. #: 22 Filed: 12/19/16 Page: 1 of 12 PageID #: 123

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ERIOLA ARAPI, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

U.S. CITIZENSHIP & IMMIGRATION )

SERVICES, et al.,

)

)

Defendants.

)

___________________________________ )

No. 4:16-cv-00692-JAR

DEFENDANTS’ MOTION TO DISMISS THE FIRST AMENDED COMPLAINT

I. INTRODUCTION

U.S. Citizenship and Immigration Services (“USCIS”) has adjudicated the naturalization

applications of each of the twenty originally named Plaintiffs in this matter, and nineteen of these

twenty Plaintiffs have been voluntarily dismissed. The sole remaining Plaintiff is Wafaa Alwan,

whose naturalization application USCIS denied for lack of good moral character, a requirement

for naturalization. See Ex. A.

The First Amended Complaint (“FAC”) neither challenges nor even mentions Plaintiff

Alwan’s naturalization denial. Indeed, the FAC could not have mentioned the denial because

USCIS made the decision well after filing of the FAC. Instead, the FAC alleges delays by

USCIS in adjudicating Plaintiff Alwan’s naturalization application.1 Because USCIS has

adjudicated Plaintiff Alwan’s application, however, the FAC is moot. Moreover, to the extent

that the Court considers the FAC a challenge by Plaintiff Alwan to her naturalization denial, the

Court should dismiss such a challenge for lack of ripeness because Plaintiff Alwan has

1 Because Plaintiff Alwan is the sole remaining Plaintiff, Defendants do not address any allegations that pertain to dismissed parties.

Case: 4:16-cv-00692-JAR Doc. #: 22 Filed: 12/19/16 Page: 2 of 12 PageID #: 124
administratively appealed USCIS’s denial decision and thus remains with administrative remedies before seeking judicial review of her denied naturalization application.
II. RELEVANT BACKGROUND AND PROCEDURAL HISTORY On May 18, 2016, Plaintiffs filed the initial Complaint in this matter. Doc. 1. On June 21, 2016, Plaintiffs filed an amended Complaint (hereinafter “First Amended Complaint” or “FAC”), which added eight Plaintiffs to the initial Complaint and resulted in a total of twenty Plaintiffs.2 Doc. 3. On July 12, 2016, this Court granted Defendants’ unopposed motion seeking a forty-five day extension of Defendants’ initial response date, thereby extending Defendants’ initial response date from July 22 to September 5, 2016. Doc. 10. On August 29, 2016, after Plaintiffs filed a “Rule 41(a) Notice of Voluntary Dismissal of Claims by Certain Plaintiffs,” see Doc. 12, this Court dismissed the following ten of twenty Plaintiffs in this matter: Eriola Arapi, Saqib Sarwar, Syed Asghar Ali, Hanaa B. Kayem, Mohammad S. Jauda, Musrath Jahan Baig, Mahmood Ali Mansur, Sary Ibrahim Doumbia, Nermin Busevac, and Abdelsamed Alamin.3 Doc. 13. On September 1, 2016, this Court granted Defendants’ opposed motion filed on the same day seeking a second forty-five day extension of Defendants’ initial response date, thereby extending Defendants’ initial response date from September 5 to October 20, 2016. Doc. 14. On October 5, 2016, after Plaintiffs filed a “Second Rule 41(a) Notice of Voluntary Dismissal of Claims by Certain Plaintiffs,” see Doc. 16, this Court dismissed the following four
2 On June 21, 2016, before amending the Complaint, Plaintiffs voluntarily dismissed Plaintiff Syed Tariq Ali from the initial Complaint. See Doc. 2.
3 As indicated in Plaintiff’s “Notice,” USCIS has approved each of these ten former Plaintiffs’ naturalization applications. See Doc. 13.
2

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of ten Plaintiffs remaining at that time: Samina Syed, Abdolreza Osouli, Amina Tursunovic, and Sharafat Mohammed.4 Doc. 17.
On October 13, 2016, after Defendants filed on October 12th an unopposed motion seeking a sixty-day extension of Defendants’ initial response date, see Doc. 18, this Court granted the motion and extended Defendants’ initial response date from October 20 to December 19, 2016. Doc. 19.
On December 12, 2016, after Plaintiffs filed a “Third Rule 41(a) Notice of Voluntary Dismissal of Claims by Certain Plaintiffs,” see Doc. 20, this Court dismissed the following five of six Plaintiffs that remained in this matter at that time: Ibrahim Mohamed Zidan, Abubakar Ahmed Abulfathi, Mirzeta Tursunovic, Mohammad A. Al Muttan, and Adnan Sawlan.5 See Doc. 21.
As of the date of the instant filing, Wafaa Alwan is the sole Plaintiff remaining in this matter. On August 25, 2016, the Illinois State Police arrested Plaintiff Alwan for the offense of Unlawful Transportation of Contraband Cigarettes, in violation of 35 ILCS 130/9C, a Class 4 Felony. USCIS accordingly issued her attached naturalization denial decision on October 20, 2016. See Ex. A.
III. LEGAL FRAMEWORK FOR NATURALIZATION The Secretary of the Department of Homeland Security (“DHS”) is vested with “sole authority to naturalize persons as citizens of the United States.” 8 U.S.C. § 1421(a); Immigration Act of 1990, Pub. L. No. 101-649, § 401, 104 Stat. 4978 1421(a); Immigration Act of 1990, Pub.
4 As indicated in Plaintiff’s second “Notice,” USCIS has approved each of these four former Plaintiffs’ naturalization applications. See Doc. 17.
5 As indicated in Plaintiff’s third “Notice,” USCIS approved three and denied three naturalization applications for these six then-remaining Plaintiffs. See Doc. 20.
3

Case: 4:16-cv-00692-JAR Doc. #: 22 Filed: 12/19/16 Page: 4 of 12 PageID #: 126
L. No. 101-649, § 401, 104 Stat. 4978.6 Under the administrative naturalization process, USCIS is responsible for adjudicating naturalization applications, including investigating the applicant, interviewing and if necessary subpoenaing witnesses, conducting an examination, and making a determination of whether to grant or deny the application. 8 U.S.C. § 1446(a), (c). To be statutorily eligible for naturalization, an applicant must show that she has been a person of good moral character for a five-year period prior to filing her naturalization application, and this period continues until the time she becomes a naturalized United States citizen. 8 U.S.C. § 1427(a)(3).
If USCIS fails to adjudicate a naturalization application within 120 days after interviewing a naturalization applicant, the applicant may apply to the district court for a hearing on the naturalization application, in which case the court “may either determine the matter or remand the matter, with appropriate instructions, to [USCIS] to determine the matter.” 8 U.S.C. § 1447(b). If USCIS denies a naturalization application, the applicant may administratively appeal the denial by requesting a hearing before an immigration officer by submitting a Form N336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA). 8 U.S.C. § 1447(a); 8 C.F.R. § 336.2(b). If, after administratively appealing the denial by filing of a Form N-336, USCIS sustains a naturalization denial, an applicant may seek de novo review of naturalization eligibility with the district court. See 8 U.S.C. §§ 1447(a), 1421(c).
6 The transfer of the former Immigration and Naturalization Service’s (“INS”) naturalization functions to DHS included the transfer of the authority to naturalize from the Attorney General to the Secretary of DHS. See Homeland Security Act of 2002, Pub. L. No.107296, § 1512(d), 116 Stat. 2135, 2310.
4

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IV. ANALYSIS
A. The First Amended Complaint is Moot
The FAC alleges that USCIS “has failed to finally adjudicate” Plaintiff Alwan’s
naturalization application. See Doc. 3 at ¶¶20, 137.7 USCIS has now completed this
adjudication. Thus, Plaintiff Alwan’s claim is moot, and the Court should dismiss the FAC on
this basis.8
7 Specific to naturalization, the FAC also seeks this Court’s “grant” of Plaintiff Alwan’s naturalization application. See Doc. 3 at ¶¶20, 137; see also Prayer for Relief at ¶4 (asking this Court to “naturalize” Plaintiff Alwan). This Court, however, cannot grant this specific relief. As a threshold matter, the FAC lacks a simple statement in the “Prayer for Relief” requesting the hearing proscribed under 8 U.S.C. § 1447(b) and, as such, Plaintiff Alwan’s request that the Court “naturalize” her is facially insufficient. Second, as explained further below as to lack of ripeness, Plaintiff Alwan has filed a Form N-336 seeking administrative review of her denied naturalization application, which constitutes administrative action that remains pending with USCIS. At the administrative hearing that Plaintiff Alwan has requested, she will be provided the opportunity to explain any “extenuating circumstances” related to her naturalization denial based on the commission of unlawful acts. See 8 C.F.R. § 316.10(b)(3)(iii); see also 8 U.S.C. §§ 1101(f), 1427(a)(3).
8 Aside from Plaintiff Alwan’s naturalization adjudication-directed claims, the FAC’s other allegations focus generally on CARRP, see Doc. 3 at ¶¶3, 7-15, 63-135, which the FAC describes as “an agency-wide policy for identifying, processing, and adjudicating immigration applications that raise ‘national security concerns,’” id. at ¶63. Relatedly, aside from the request that the Court naturalize Plaintiff Alwan and award costs, see Doc. 3 at “Prayer for Relief” at ¶¶4-5, the remaining relief requested in the FAC focuses on CARRP, id. at ¶¶1-3.
To the extent that, despite USCIS’s articulated bases for denying her naturalization application, Plaintiff Alwan at this stage of the litigation continues to assert that USCIS has “appl[ied] CARRP” to the adjudication of her application, this assertion is warrantless. As a threshold matter, there can be no reasonable dispute that Plaintiff Alwan’s naturalization denial is the agency decision now at issue given that Plaintiff Alwan filed a Form N-336 on November 17, 2016, seeking administrative review of the denial. See Ex. B. Further, the denial explains that she is ineligible to naturalize – not based on any alleged CARRP considerations – but based on unlawful acts committed during the good moral character period. See Ex. A (citing 8 U.S.C. §§ 1101(f), 1427(a)(3); 8 C.F.R. § 316.10(b)(3)(iii)). With these threshold considerations in mind, the FAC’s CARRP claims – encompassing Counts One through Five of Six total counts – fail on two bases. First, the Court lacks jurisdiction to review them because Counts One through Five do not identify an injury in fact. See City of Los Angeles v. Lyons, 461 U.S. 95, 95 (1983). USCIS has plainly stated the statutory bases for denying Plaintiff Alwan’s naturalization application, and nowhere does Plaintiff Alwan state in the FAC just how this denial decision relates to CARRP or how it injured her. Given no injury and the consequent lack of standing, this Court should dismiss Counts One through Five for lack of subject-matter jurisdiction under
5

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The power of federal courts is restricted by Article III of the Constitution to cases and controversies. DeFunis v. Odegaard, 416 U.S. 312, 314 (1974); United States v. Sanders, 276 Fed. Appx. 532, 533 (8th Cir. 2008); Arkansas AFL-CIO v. F.C.C., 11 F.3d 1430, 1435 (8th Cir. 1993). The Eighth Circuit defines a “case or controversy” as requiring “a definite and concrete controversy involving adverse legal interests at every stage in the litigation.” Arkansas AFLCIO, 11 F.3d at 1435 (citations omitted). The controversy must be a “live” one where the court can grant conclusive relief. Id. (“Occasionally, due to the passage of time or a change in circumstance, the issues presented in a case will no longer be ‘live’ or the parties will no longer have a legally cognizable interest in the outcome of the litigation. When such changes prevent a federal court from granting effective relief, the case becomes moot.”). Federal courts lack power to decide the merits of a moot case. Potter v. Norwest Mortg., Inc., 329 F.3d 608, 611 (8th Cir. 2003); Missouri ex rel. Nixon v. Craig, 163 F.3d 482, 484 (8th Cir. 1998).
There is no question here that USCIS adjudicated Plaintiff Alwan’s naturalization application and issued a decision on October 20, 2016. See Ex. A. Plaintiff Alwan acknowledged that USCIS has reached a decision on her naturalization application by filing an administrative appeal on November 17, 2016. See Ex. B. As such, whatever “live” controversy previously existed between Plaintiff Alwan and Defendant USCIS concerning pending adjudication of the naturalization application no longer exists for this Court to either review or
Rule 12(b)(1). Second, Counts One through Five fail to state claims for relief. Nowhere does Plaintiff Alwan state any claim that mentions her naturalization denial. And, even if the Court were to overlook the statutory denial basis USCIS has identified and were to read into Counts One through Five an allegation that CARRP influenced the denial decision, such an allegation would fail as speculative and conclusory, rather than plausible on its face – and would warrant dismissal under Rule 12(b)(6) – in light of the denial bases the decision identifies. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570). To the extent that there remains disagreement on this point after the Court reviews briefing concerning this motion and issues an order on it, Defendants respectfully request the opportunity to address the CARRP allegations.
6

Case: 4:16-cv-00692-JAR Doc. #: 22 Filed: 12/19/16 Page: 7 of 12 PageID #: 129
relieve. See Arkansas AFL-CIO, 11 F.3d at 1435. Accordingly, given the specific nature of the
relief Plaintiff Alwan seeks in the FAC, see Doc. 3 at ¶¶20, 137, all claims concerning this relief
are now moot. Dismissal of the FAC under Federal Rule of Civil Procedure 12(b)(1) therefore is
warranted.
B. Alternatively, This Matter is Not Ripe for Judicial Review
To the extent that this Court were to consider the FAC as a challenge by Plaintiff Alwan
to the recent denial of her naturalization application, such a challenge is not ripe. Plaintiff has
administratively appealed her denial, and until an appeal decision is reached, there no longer is a
concrete USCIS administrative decision for this Court to review. Acknowledging the lack of a
ripe conflict at issue concerning Plaintiff Alwan, dismissal for lack of subject-matter jurisdiction of any naturalization denial challenge by her is appropriate.9
A goal of the ripeness doctrine “is to prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract disagreements over administrative policies,
and also to protect the agencies from judicial interference until an administrative decision has
been formalized and its effects felt in a concrete way by the challenging parties.” Pacific Gas &
Elec. Co. v. State Energy Resources Conservation & Dev. Comm'n, 461 U.S. 190, 200 (1983) (internal quotations and citations omitted).10 The Eighth Circuit has determined that “[t]he
9 Significantly, if this Court were to dismiss the FAC, Plaintiff Alwan would yet remain with a means of challenging her naturalization denial if USCIS affirms the denial on review. As outlined above, judicial review is available under section 1421(c) for naturalization application denials once the applicant has exhausted administrative remedies by filing an administrative appeal through Form N-336 and obtaining a decision on that appeal. See 8 U.S.C. § 1421(c) (citing 8 U.S.C. § 1447(a)). Section 1421(c) provides de novo district court review of the applicant’s naturalization eligibility. As such, dismissal of the FAC at this stage does not foreclose further meaningful review options for Plaintiff Alwan.
10 Dismissal on ripeness grounds can resemble dismissal for lack of final agency action in the APA context, to the extent that – for a challenged matter to be appropriate for judicial review – the ripeness doctrine requires the completion of an agency decision. See Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (explaining the finality requirement to obtain APA review
7

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ripeness doctrine flows both from the Article III ‘cases’ and ‘controversies’ limitations and also
from prudential considerations for refusing to exercise jurisdiction.” Pub. Water Supply Dist.
No. 10 of Cass County, Mo. v. City of Peculiar, 345 F.3d 570, 572 (8th Cir. 2003) (quoting
Nebraska Pub. Power Dist. v. MidAmerican Energy Co., 234 F.3d 1032, 1037 (8th Cir. 2000))
(internal quotation marks omitted). Ripeness analysis requires a court to weigh both “the fitness
of the issues for judicial decision and the hardship to the parties of withholding court
consideration.” Pub. Water Supply Dist., 345 F.3d at 572-73 (internal quotations marks
omitted). Both ripeness prongs must be satisfied to justify judicial review. Id. at 573. The
fitness prong implicates the court’s ability to determine whether a case would benefit from
further factual development. Id. Hardship considerations resulting from delayed review “rarely
overcome the finality and fitness problems inherent in attempts to review tentative positions.”
of agency action). The FAC contains APA claims, which are directly pled under the APA’s ‘notice and comment provision’ at 5 U.S.C. § 553, see Doc. 3 at ¶¶65, 127, and are obliquely pled under the APA’s ‘unreasonable delay’ provision at 5 U.S.C. § 706, see id. at heading to Count Three. It is noteworthy that the FAC lacks any allegation under the APA provision at 5 U.S.C. § 706(2) allowing a challenge to an agency determination as arbitrary, capricious, or contrary to law. But, were this Court to read in the FAC such an APA challenge by Plaintiff Alwan, it would fail for two reasons. First, it would not be reviewable by this Court because judicial review under the APA is explicitly limited to cases where “there is no other adequate remedy in a court.” See 5 U.S.C. § 704; Bowen v. Massachusetts, 487 U.S. 879, 903 (1988). Here, subject-matter jurisdiction under section 706(2) is lacking because Plaintiff Alwan has a remedy outside of the APA, as she can seek review under 8 U.S.C. § 1421(c) once the N-336 process is completed and if she is dissatisfied with the result. See Heslop v. Att’y Gen’l of the United States, 594 F. App’x 580, 584 (11th Cir. 2014); cf. Escaler v. U.S.C.I.S., 582 F.3d 288, 291 n. 1 (2d Cir. 2009). Thus, dismissal of such an APA claim under Rule 12(b)(1) would be appropriate. Second, an APA challenge under section 706(2) would fail to state a claim under Rule 12(b)(6) because Alwan’s administrative appeal of the naturalization denial means the denial is now provisional and is not ripe, serving only for the time being until a final agency determination is reached when USCIS decides the naturalization appeal. See Bennett, 520 U.S. at 578 (“As a general matter . . . to be final . . . the [agency] action must mark the consummation of the agency’s decisionmaking process . . . [and] must not be of a merely tentative or interlocutory nature.”) (internal citations and quotation marks omitted). Accordingly, and aside from the CARRP-related challenges in Counts One through Five, if the Court reads into the FAC at Count Six an APA challenge under 5 U.S.C. § 706(2) to Plaintiff Alwan’s naturalization denial, it should dismiss such a challenge.
8

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American Petroleum Institute v. EPA, 683 F.3d 382, 389 (D.C. Cir. 2012). A case is less ripe if dependent on future possibilities. Id. Finally, ripeness may be addressed sua sponte at any stage in the proceedings because it directly affects the Court’s jurisdiction. Bergstrom v. Bergstrom, 623 F.2d 517, 519 n. 1 (8th Cir. 1980).
On November 17, 2016, Plaintiff Alwan administratively appealed her naturalization denial by filing Form N-336. See Ex. B. As such, her circumstances have altered as the parties have moved closer in time to this Court’s review of the FAC. In analyzing the ripeness of this matter for judicial review, at least two factors counsel in favor of finding it is not ripe for this Court’s review and that it warrants dismissal for lack of subject-matter jurisdiction.11 First, this Court should account for Plaintiff Alwan’s current situation – and the administrative developments that she has prompted based on her own filings. “Ripeness is peculiarly a question of timing and is governed by the situation at the time of review, rather than the situation at the time of the events under review.” Iowa League of Cities v. E.P.A., 711 F.3d 844, 867 (8th Cir. 2013) (internal citations and quotations omitted). Here, in light of Plaintiff Alwan’s Form N336, USCIS will provide her – on the day of her denial appeal hearing – the opportunity to explain to USCIS any extenuating circumstances that she believes mitigate USCIS’s finding in its naturalization denial decision that she has committed an unlawful act precluding her from establishing the requisite good moral character to naturalize. See Ex. A (citing 8 C.F.R. § 316.10(b)(3)(iii)) (providing that, “[u]nless the applicant establishes extenuating circumstances, the applicant shall be found to lack good moral character if, during the statutory period, the
11 The subject-matter jurisdiction analysis under ripeness and standing are related. See Johnson v. Missouri, 142 F.3d 1087, 1090 n. 4 (8th Cir. 1998) (“Although we realize that standing and ripeness are technically different doctrines, they are closely related in that each focuses on whether the harm asserted has matured sufficiently to warrant judicial intervention.”) (citation and internal quotation marks omitted).
9

Case: 4:16-cv-00692-JAR Doc. #: 22 Filed: 12/19/16 Page: 10 of 12 PageID #: 132
applicant: . . . [c]omitted unlawful acts [.]”). Second, this Court should consider the
administrative process already underway and the expertise in immigration matters like the one
before this Court that USCIS possesses and can bring to bear in resolving Plaintiff Alwan’s
naturalization denial appeal. See INS v. Ventura, 537 U.S. 12, 16-17 (2002) (per curiam)
(highlighting the benefit of agency expertise “in the immigration context” and the “informed
discussion and analysis” that can “help a court later determine whether its decision exceeds the
leeway that the law allows.”). Considering these factors, the Court should dismiss the FAC because Plaintiff Alwan cannot show she meets the fitness prong of ripeness analysis.12 See
Pub. Water Supply Dist., 345 F.3d at 572-73.
If, in light of the FAC coupled with Plaintiff Alwan’s current circumstances, this Court considers Alwan’s claims as a challenge to her naturalization denial,13 it should dismiss such a
challenge. Given Plaintiff Alwan’s pending administrative appeal of her naturalization denial,
no challenge to that denial before this Court can be considered ripe, and such a challenge
warrants dismissal for this reason under Federal Rule of Civil Procedure 12(b)(1).
12 As discussed above, a plaintiff is required to meet a two-pronged test to show ripeness. See Pub. Water Supply Dist., 345 F.3d at 572-73 (explaining two-prong ripeness analysis). As such, Plaintiff Alwan’s above-described failure to meet the fitness prong is an independent basis on which this Court can dismiss the FAC without further analysis. Plaintiff Alwan also, however, fails to meet the hardship prong. As explained above, once the administrative process is resolved – with Plaintiff Alwan presenting at her appeal hearing any extenuating circumstances to explain her unlawful act – she can pursue judicial review of her naturalization denial under 8 U.S.C. § 1421(c) if USCIS sustains her denial. Plaintiff Alwan’s failure to show hardship is thus a second independent justification for denial of the FAC for lack of ripeness.
13 Again, this Court should not read into the FAC a challenge to Plaintiff Alwan’s naturalization denial as the FAC lacks any such claim, and such a claim nonetheless is not ripe. See State of Mo. ex rel. Missouri Highway & Transp. Comm’n v. Cuffley, 112 F.3d 1332, 1338 (8th Cir. 1997) (“A federal court is neither required nor empowered to wade through a quagmire of what-ifs like the one the State placed before the District Court in this case. Until the State acts on the Klan’s application and creates a concrete record for judicial consideration, this dispute is simply not ripe for review.”).
10

Case: 4:16-cv-00692-JAR Doc. #: 22 Filed: 12/19/16 Page: 11 of 12 PageID #: 133

V. CONCLUSION

For the foregoing reasons, the Court should dismiss the FAC for lack of subject-matter

jurisdiction.

Dated: December 19, 2016

Respectfully submitted,

RICHARD C. CALLAHAN

BENJAMIN C. MIZER

United States Attorney

Principal Deputy Assistant Attorney General

Civil Division

/s/ Jane Rund

WILLIAM C. PEACHEY

JANE RUND #47298 MO

Director, Office of Immigration Litigation

Assistant United States Attorney

District Court Section

111 South Tenth Street, Room 20.333

CHRISTOPHER W. DEMPSEY

St. Louis, MO 63102

Assistant Director

Tel: (314) 539-7636

Fax: (314) 539-2287

By: /s/ Christopher W. Hollis

jane.rund@usdoj.gov

CHRISTOPHER W. HOLLIS

Trial Attorney, #6283101 IL

U.S. Department of Justice

Office of Immigration Litigation

District Court Section

P.O. Box 868, Ben Franklin Station

Washington, DC 20044

Tel: (202) 305-0899; 616-8962 (fax)

christopher.hollis@usdoj.gov

11

Case: 4:16-cv-00692-JAR Doc. #: 22 Filed: 12/19/16 Page: 12 of 12 PageID #: 134
CERTIFICATE OF SERVICE
I hereby certify that, on December 19, 2016, the foregoing Defendants’ Motion to Dismiss the First Amended Complaint was filed electronically with the Clerk of the Court to be served by operation of the Court’s electronic filing system upon the following counsel of record for Plaintiff:
James O. Hacking, III, Esq. Attorney at Law 34 N. Gore, Ste. 101 St. Louis, MO 63119 jim@hackinglawpractice.com
/s/ Christopher W. Hollis CHRISTOPHER W. HOLLIS U.S. Department of Justice

Case: 4:16-cv-00692-JAR Doc. #: 22-1 Filed: 12/19/16 Page: 1 of 5 PageID #: 135
Exhibit A
Denial Decision by U.S. Citizenship and Immigration Services on Plaintiff Alwan’s Form N-400, Application for Naturalization
Arapi, et al. v. U.S.C.I.S., et al., 4:16-cv-692-JAR DEFENDANTS’ MOTION TO DISMISS THE FIRST AMENDED COMPLAINT

Case: 4:16-cv-00692-JAR Doc. #: 22-1 Filed: 12/19/16 Page: 2 of 5 PageID #: 136

Case: 4:16-cv-00692-JAR Doc. #: 22-1 Filed: 12/19/16 Page: 3 of 5 PageID #: 137

Case: 4:16-cv-00692-JAR Doc. #: 22-1 Filed: 12/19/16 Page: 4 of 5 PageID #: 138

Case: 4:16-cv-00692-JAR Doc. #: 22-1 Filed: 12/19/16 Page: 5 of 5 PageID #: 139

Case: 4:16-cv-00692-JAR Doc. #: 22-2 Filed: 12/19/16 Page: 1 of 9 PageID #: 140
Exhibit B
Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA) submitted by Plaintiff Alwan and received by U.S. Citizenship and Immigration
Services on November 17, 2016
Arapi, et al. v. U.S.C.I.S., et al., 4:16-cv-692-JAR DEFENDANTS’ MOTION TO DISMISS THE FIRST AMENDED COMPLAINT

Case: 4:16-cv-00692-JAR Doc. #: 22-2 Filed: 12/19/16 Page: 2 of 9 PageID #: 141

Case: 4:16-cv-00692-JAR Doc. #: 22-2 Filed: 12/19/16 Page: 3 of 9 PageID #: 142

Case: 4:16-cv-00692-JAR Doc. #: 22-2 Filed: 12/19/16 Page: 4 of 9 PageID #: 143

Case: 4:16-cv-00692-JAR Doc. #: 22-2 Filed: 12/19/16 Page: 5 of 9 PageID #: 144

Case: 4:16-cv-00692-JAR Doc. #: 22-2 Filed: 12/19/16 Page: 6 of 9 PageID #: 145

Case: 4:16-cv-00692-JAR Doc. #: 22-2 Filed: 12/19/16 Page: 7 of 9 PageID #: 146

Case: 4:16-cv-00692-JAR Doc. #: 22-2 Filed: 12/19/16 Page: 8 of 9 PageID #: 147

Case: 4:16-cv-00692-JAR Doc. #: 22-2 Filed: 12/19/16 Page: 9 of 9 PageID #: 148

 
 Case: 4:16-cv-00692-JAR Doc. #: 25 Filed: 01/03/17 Page: 1 of 9 PageID #: 151

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

WAFAA ALWAN, Alien # 212 166 955,

Plaintiff,

Case No. 16-CV-00692-JAR

v.

UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.

Defendants.

MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS

The Defendants’ Motion to Dismiss should be denied. This issue involves

whether or not the language of 8 U.S.C. § 1447(b) grants full jurisdictional powers to the

district court when an applicant for naturalization seeks remedial measures against the

USCIS in federal district court for its unreasonable delay in processing its decision.

Because the district court did retain full jurisdictional power, USCIS did not have

jurisdiction to rule on the status of plaintiff’s application while the case was pending in

this court.

Several courts have ruled in favor of a plain language reading of 8 U.S.C. §

1447(b). The language clearly indicates that if USCIS fails to reach a decision within

120 days from an applicant’s “examination” that the applicant can bring suit in district

court for a ruling on the matter. The district court then has the prerogative to either rule

on the matter or remand the matter back to USCIS. Allowing USCIS to make a ruling

while the case is pending in district court creates confusing, overlapping jurisdiction,

Case: 4:16-cv-00692-JAR Doc. #: 25 Filed: 01/03/17 Page: 2 of 9 PageID #: 152
strips § 1447(b) of its central purpose, and makes the court’s statutorily stated right to remand the case back to USCIS obsolete.
STATEMENT OF FACTS Plaintiff Emad Haroun has been a lawful permanent resident of the United States for many years. First Amended Complaint, p. 20. She filed an N-400 application for naturalization with Defendant U.S. Citizenship and Immigration Services (USCIS) on December 17, 2014. Id. at 4. USCIS, through its local field office in St. Louis, conducted an N-400 interview on August 31, 2015. USCIS then refused to adjudicate Plaintiff’s N-400 application. Plaintiff made repeated requests and InfoPass appointments with USCIS to find out why her case was being delayed. USCIS refused to provide her any information regarding if or when her case would be decided. After waiting for more than eighteen months for USCIS to decide the case, Plaintiff filed the present action along with the previously dismissed Defendants. The Complaint sought relief in mandamus under the Administrative Procedures Act and 8 U.S.C. § 1447(b). In the lawsuit, Plaintiff further alleged that her case was being delayed due to the illegal Controlled Application Review and Resolution Program (CARRP), a secret program designed by the Defendants to delay the immigration cases of Muslims and to develop pretextual reasons for denying said applications. The lawsuit seeks a declaratory judgment that the CARRP program is illegal. The lawsuit was filed on May 18, 2016. On October 20, 2016, five months and two days after Plaintiff filed this action, the Defendants finally issued their purported denial of Plaintiff’s application. The denial cited a single arrest by Illinois State Police
2

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for allegedly transporting too many cigarettes to Chicago. The denial contains no information regarding the outcome of the arrest or any judicial disposition. In addition, the USCIS never asked Plaintiff to submit evidence regarding the alleged arrest as is the agency’s custom. They simply denied the case is response to this lawsuit. This purported denial is the precise type of denial challenged by the Plaintiff in his lawsuit to have the illegal CARRP program declared illegal.
On December 19, 2016, Defendants filed the present motion to dismiss. Cleverly, the Defendants seek to have this Court reward them for their delay, for denying Plaintiff’s application only after she filed suit and argue that Plaintiff lacks standing and that her case is moot because they have now finally adjudicated the matter.
For the reasons stated below, once the Plaintiff filed suit on September 23, 2016, this Court had exclusive jurisdiction over Plaintiff’s naturalization application. The purported denial by USCIS is null and should be disregarded by the Court. The Court should set this matter for an initial status conference and the case should proceed to litigation.
ARGUMENT I. TO AVOID PROBLEMS WITH CONCURRENT JURISDICTIONS BETWEEN
FEDERAL COURTS AND USCIS, 8 U.S.C. §1447 (b) IS TO BE INTERPRETED BY ITS PLAIN LANGUAGE MEANING GRANTING JURISDICTION SOLELY TO THE DISTRICT COURT TO EITHER RULE ON THE MATTER OR REMAND THE MATTER TO DHS A. This district court and several other circuit courts have found that the
language of § 1447(b) is clear and should be interpreted by its plain language meaning which grants sole jurisdiction over the matter to the district court
3

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8 U.S.C. § 1447(b) provides applicants for naturalization a method by which they can appeal to Federal District Court when USCIS fails “to make a determination under section 1446 . . . before the end of the 120-day period after the date on which the examination is conducted under such section.” 8 U.S.C. § 1447(b). This statute gives the applicant the power to bring its complaint to the United States district court and also emphasizes that the “court has jurisdiction over the matter and may either determine the matter or remand the matter . . . to [USCIS] to determine the matter.” Id.
Several years ago, this district court interpreted § 1447(b) by its plain language and explained that § 1447(b) gives an applicant the right to an invocation “asking a district court to independently consider the naturalization application . . . and any other information in the record to determine the naturalization application.” Obanigba v. Chertoff, No. 4:07CV1192 RWS, 2008 WL 294332, at *2 (E.D. Mo. Jan. 31, 2008) (emphasis added) (The court ended up remanding that case because the USCIS had taken a shortcut as to the actual examination procedure by doing the applicant’s examination before FBI background checks had been completed. Without the completion of the FBI checks, the court could not rule on the mater. However, our case does not involve this misstep by the USCIS.).
Other decisions by this district court also upheld the plain language meaning of § 1447(b), granting jurisdiction to the district court. See Hamzehzadeh v. Chertoff, No. 406CV1462 RWS, 2007 WL 1629895, at 1 (E.D. Mo. June 4, 2007) (finding that “Congress has expressly limited the jurisdiction of district courts in the naturalization process” but that the language of §1447(b) grants jurisdiction to the district court); Shalabi v. Gonzales, No. 4:06CV866 RWS, 2006 WL 3032413, at 1 (E.D. Mo. Oct. 23,
4

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2006) (“The statute grants the district court jurisdiction 120-days after “the date on which the examination is conducted.”).
The Second, Fourth, Seventh, and Ninth Circuits have also analyzed § 1447(b) by its plain language and have upheld the district court’s sole jurisdictional power. See Bustamante v. Napolitano, 582 F.3d 403, 406 (2d Cir. 2009) (stating that “‘statutory analysis necessarily begins with the plain meaning of a law's text and, absent ambiguity, will generally end there’ and reasoning that §1447(b)’s “language clearly grants the district court jurisdiction over the naturalization application.”); Etape v. Chertoff, 497 F.3d 379 (4th Cir. 2007) (“Giving these words their ‘ordinary meaning,’ as we must . . . we can only conclude that a proper § 1447(b) petition vests the district court with exclusive jurisdiction, unless and until the court “remand[s] the matter” to the CIS.”); Aljabri v. Holder, 745 F.3d 816, 820 (7th Cir. 2014) (“Like [the Second, Fourth, and Ninth] circuits, we start with the plain language of § 1447(b), and as they did, we find it incompatible with a system of concurrent jurisdiction.”); United States v. Hovsepian, 359 F.3d 1144, 1161 (9th Cir. 2004) (holding that a plain language reading of the statute trumped “the INS’s proposed interpretation of § 1447(b)” because it could not “be squared with the text of the statute and, accordingly must be rejected,” and finding sole jurisdiction for the district court.).
B. Interpreting the language of § 1447(b) by anything other than its plain language leads to confusing, overlapping jurisdictions, strips the statute of its purpose, and makes meaningless the court’s statutorily divested right to “remand” the matter back to USCIS
Departing from the plain language of § 1447(b) would lead to confusing, overlapping jurisdictions. Such a framework would lead to uncertainty as to whose decision ruled. The Seventh Circuit argued that it would be unreasonable to take away
5

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from the district court’s “unqualified grant of power” by adding an “unwritten ‘if…,’ or to give the USCIS the prerogative to nullify the court’s statutory power.” Aljabri, 745 F.3d at 820. Similarly, the Fourth Circuit rejected the government’s argument that USCIS held concurrent jurisdiction with the district court. Etape, 497 F.3d at 383. The court found absurd the notion that an administrative agency could “divest a federal district court of its congressionally authorized jurisdiction.” Id. Such an overlapping of jurisdictional authority would also lead to waste, according to the Ninth Circuit, “because district courts and the INS would often engage in unnecessary duplication of factual investigations and legal analyses.” Hovsepian, 359 F.3d at 1163.
Allowing a jointly held jurisdiction would also strip the statute of its purpose. The Ninth Circuit Court argued that joint jurisdiction over the matter would frustrate the central purpose of § 1447(b), which was created “to reduce the waiting time for naturalization applicants.” Id. In fact, the court argues that waiting times would be increased. Also, there would be an unnecessary increase in workload for both an overburdened court and administrative agency. Id. The court reasoned:
In cases in which the INS eventually denied an application, the district court would be required to dismiss or stay an applicant's § 1447(b) action, wait for the applicant to exhaust administrative remedies and, if the applicant requested it, engage in a de novo review of the INS's decision and hold another hearing under § 1421(c). Id. In other words, a joint jurisdiction would just lengthen the entire process. Thus, a reading of the statute allowing for joint jurisdiction just leads to inefficiency, directly contradicting the statute’s primary purpose of encouraging timeliness. Lastly, the defendants proposed interpretation of § 1447 would make meaningless the wording of the statute. The Fourth District Court reasoned that the very
6

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language of the statute, specifically the wording granting the court the ability to remand the case back to the agency, “indicates that Congress intended a hierarchy.” Id. It said that “[a]ccepting the Government's view [in calling for joint jurisdiction] would ignore this hierarchy established by Congress. Congress would not have granted district courts the power of ‘remand’—the power to ‘send back’—if a naturalization application remained with the CIS after the filing of a § 1447(b) petition.” Id. at 384. The court further said that “[w]e cannot interpret a statute in a manner that would render some of its language meaningless; rather, we must give effect to each portion of the statute, including that providing district courts with the power to ‘remand ... with appropriate instructions.’” Id. (emphasis added).
The Seventh Circuit similarly reasoned that a departure from the plain language, as the government proposed, would “render meaningless the district court's power to ‘remand the matter’ if the agency could act even without a remand.” Id. The Second Circuit also joined the Fourth and Seventh Districts by arguing that a departure from a plain meaning reading of the language of § 1447(b) would lead to absurd results “render[ing] the ‘remand’ language in the statute meaningless.” Bustamante, 582 F.3d at 406-07 (emphasis added).
CONCLUSION The plain language meaning of 8 U.S.C. § 1447(b) transfers jurisdiction to the district court to determine a naturalization matter when USCIS has taken more than 120 days in finalizing its decisions after an applicant’s examination. Once the district court has jurisdiction, the agency no longer has jurisdiction or else the language of the statute allowing the district court to remand the matter back to the agency becomes frustrated
7

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and obsolete. To avoid confusing, overlapping jurisdictions, a stripping away of the statute’s intent, and making parts of the statutory language meaningless, this district and several circuit courts have focused the interpretation of § 1447(b) on its plain language.
Since USCIS made a ruling on the plaintiff’s naturalization only after she had already appealed to the district court, USCIS was already stripped of its jurisdiction and that jurisdiction was given to and continues to reside with this district court. Therefore, USCIS did not have authority to make a decision regarding plaintiff’s naturalization application. This court should follow prior decisions and reasoning of this district court and other circuit courts by focusing on the plain language of § 1447(b), granting full jurisdiction solely to this district court, and by denying defendant’s Motion to Dismiss.
Plaintiff should be allowed the opportunity to inquire as to the source of her nearly two year delay in waiting for his citizenship. The Defendants should not be allowed to avoid judicial review of their conduct in this case by trying to issue a denial after the lawsuit has been filed. Defendants have not shown that they are entitled to judgment in their favor as a matter of law and the motion should be denied.
RESPECTFULLY SUBMITTED this 3rd day of January, 2017
James O. Hacking, III, MO Bar # 46728 Hacking Law Practice, LLC 34 N. Gore, Suite 101 St. Louis, MO 63119 (O) 314.961.8200 (F) 314.961.8201
(E) jim@hackinglawpractice.com ATTORNEYS FOR PLANTIFF
8

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HACKING LAW PRACTICE, LLC
/s/ James O. Hacking, III James O. Hacking, III, Mo. Bar. # 46728 34 N. Gore, Suite 101 St. Louis, MO 63119 Phone: (314) 961-8200 Fax: (314) 961-8201 Email: jim@hackinglawpractice.com

CERTIFICATE OF SERVICE

I hereby certify that on January 3, 2017, the foregoing was served via operation of the Court’s CM/ECF system upon the following counsel of record for Respondents:

Ms. Jane Rund Assistant United States Attorney 111 South Tenth Street Room 20.333 St. Louis, Missouri 63102 Tel: (314) 539-7636 Fax: (314) 539-2287 jane.rund@usdoj.gov

Mr. Christopher Hollis Trial Attorney U.S. Department of Justice Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Tel: (202) 305-0899; 616-8962 (Fax) christopher.hollis@usdoj.gov

/s/ James O. Hacking, III

9

 
 Case: 4:16-cv-00692-JAR Doc. #: 28 Filed: 08/24/17 Page: 1 of 9 PageID #: 197

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DISTRICT

WAFAA ALWAN,

)

)

Plaintiff,

)

)

v.

)

)

U.S. CITIZENSHIP & IMMIGRATION

)

SERVICES, et al.,

)

)

Defendants.

)

No. 4:16-CV-00692 JAR

MEMORANDUM AND ORDER

This matter is before the Court on a motion to dismiss filed by Defendants U.S.

Citizenship Immigration Services (“USCIS”); Jeh Johnson, Secretary of Homeland Security;

Leon Rodriguez, Director of USCIS; Matthew D. Emrich, Associate Director, Fraud Detection

and National Security Directorate of USCIS; Daniel Renaud, Associate Director, Field

Operations Directorate of USCIS; David Douglas, District Director of the Kansas City District

Office, USCIS; and Chester Moyer, Director of the St. Louis Field Office of USCIS (Doc. No.

22). The motion is fully briefed and ready for disposition. For the following reasons, the motion

will be granted.

Background

On May 18, 2016, Plaintiffs Eriola Arapi, Samina Syed, Wafaa Alwan, Saqib Sarwar,

Mohammad A. Al Muttan, Syed Asghar Ali, Ibrahim Mohamed Zidan, Hanaa B. Kayem, Abubakar Ahmed Abulfathi, Mirzeta Tursunovic, Amina Tursunovic, Syed Tariq Ali,1 and

1 On June 21, 2016, before amending their complaint, Plaintiffs voluntarily dismissed Syed Tariq Ali (Doc. No. 2).
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Mohammad S. Jauda filed the initial complaint in this matter alleging their naturalization applications were being unlawfully delayed under a policy known as the Controlled Application Review and Resolution Program (“CARRP”). Plaintiffs claimed that CARRP was designed by Defendants to delay the immigration cases of Muslims and develop pretextual reasons for denying their applications. Plaintiffs requested the Court enjoin USCIS from applying CARRP to their immigration applications, declare that CARRP is illegal, and adjudicate their applications. (Doc. No. 1). On June 21, 2016, Plaintiffs filed an Amended Complaint for Declaratory and Injunctive Relief (“AC”), joining eight additional Plaintiffs, for a total of twenty Plaintiffs (Doc. No. 3).
On July 12, 2016, this Court granted Defendants’ unopposed motion seeking an extension of their initial response date from July 22, 2016 to September 5, 2016 (Doc. No. 10). On August 29, 2016, after Plaintiffs filed a “Rule 41(a) Notice of Voluntary Dismissal of Claims by Certain Plaintiffs” (Doc. No. 12), the Court dismissed the following ten Plaintiffs: Eriola Arapi, Saqib Sarwar, Syed Asghar Ali, Hanaa B. Kayem, Mohammad S. Jauda, Musrath Jahan Baig, Mahmood Ali Mansur, Sary Ibrahim Doumbia, Nermin Busevac, and Abdelsamed Alamin.2 (Doc. No. 13).
On September 1, 2016, this Court granted Defendants’ unopposed motion seeking another extension of their response date, from September 5, 2016 to October 20, 2016 (Doc. No. 14). On October 5, 2016, after Plaintiffs filed a “Second Rule 41(a) Notice of Voluntary Dismissal of Claims by Certain Plaintiffs” (Doc. No. 16), this Court dismissed the following four
2 As indicated in Plaintiffs’ “Notice,” USCIS approved each of these ten former Plaintiffs’ naturalization applications (Doc. No. 12).
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Plaintiffs: Samina Syed, Abdolreza Osouli, Amina Tursunovic, and Sharafat Mohammed.3 (Doc. No. 17).
On October 13, 2016, the Court granted Defendants’ unopposed motion to extend their response date from October 20, 2016 to December 19, 2016 (Doc. No. 19). On December 12, 2016, after Plaintiffs filed a “Third Rule 41(a) Notice of Voluntary Dismissal of Claims by Certain Plaintiffs” (Doc. No. 20), the Court dismissed the following five Plaintiffs: Ibrahim Mohamed Zidan, Abubakar Ahmed Abulfathi, Mirzeta Tursunovic, Mohammad A. Al Muttan, and Adnan Sawlan.4 (Doc. No. 21).
Wafaa Alwan, a forty-nine year old Iraqi national and lawful permanent resident of the United States, is the sole remaining Plaintiff in this matter. Alwan applied for naturalization on December 17, 2014, and appeared for an interview on August 31, 2015 (AC at ¶ 20). She alleges that even though she satisfies all statutory criteria for naturalization, USCIS refused to adjudicate her application, instead applying more stringent rules under CARRP (AC at ¶ 3). According to Alwan, her application was delayed under CARRP, which prohibits USCIS field officers from approving an application with a potential “national security concern,” instead directing them to deny the application or delay adjudication—often indefinitely—in violation of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 101 et seq. (AC at ¶¶ 8-9, 13, 48). Alwan requests the Court determine that she meets the requirements of naturalization and naturalize her without further delay (AC at ¶¶ 137-38).
On August 25, 2016, after the filing of this complaint, the Illinois State Police arrested
3 As indicated in Plaintiffs’ second “Notice,” USCIS approved each of these four former Plaintiffs’ naturalization applications (Doc. No. 16). 4 As indicated in Plaintiffs’ third “Notice,” USCIS approved three and denied three naturalization applications for these six former Plaintiffs (Doc. No. 20).
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Alwan for the offense of Unlawful Transportation of Contraband Cigarettes, in violation of 35 ILCS 130/9C, a Class 4 Felony. USCIS denied Alwan’s application for naturalization on October 20, 2016 based on unlawful acts committed during the good moral character period (Doc. No. 22-1). On November 17, 2016, Alwan filed an administrative appeal of the denial of her application (Doc. No. 22-2), which appears to be pending.
Legal framework for naturalization To become a United States citizen through naturalization, an applicant must satisfy certain eligibility criteria under the INA. Applicants must prove that they are “at least 18 years of age,” 8 C.F.R. § 316.2(a)(1); have “resided continuously, after being lawfully admitted” to the United States “for at least five years”; and have been “physically present” in the United States for “at least half of that time.” 8 U.S.C. § 1427(a)(1). Applicants must also demonstrate “good moral character” for the five years preceding the date of application, “attach[ment] to the principles of the Constitution of the United States, and favorabl[e] dispos[ition] toward the good order and happiness of the United States …” 8 C.F.R. § 316.2(a)(7). Once an individual submits an application, USCIS conducts a background investigation, see 8 U.S.C. § 1446(a); 8 C.F.R. § 335.1, which includes a full FBI criminal background check, see 8 C.F.R. § 335.2. After completing the background investigation, USCIS schedules a naturalization examination at which the applicant meets with a USCIS examiner for an interview. In order to avoid inordinate processing delays and backlogs, Congress has stated “that the processing of an immigration benefit application,” which includes naturalization, “should be completed not later than 180 days after the initial filing of the application.” 8 U.S.C. § 1571(b). USCIS must either grant or deny a naturalization application within 120 days of the date of the examination. 8 C.F.R. § 335.3. If an applicant satisfies the statutory requirements for
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Case: 4:16-cv-00692-JAR Doc. #: 28 Filed: 08/24/17 Page: 5 of 9 PageID #: 201
naturalization, USCIS “shall grant the application.” 8 C.F.R. § 335.3(a). If USCIS fails to adjudicate a naturalization application within 120 days after
interviewing a naturalization applicant, the applicant may apply to the district court for a hearing on the naturalization application, in which case the court “may either determine the matter or remand the matter, with appropriate instructions, to [USCIS] to determine the matter.” 8 U.S.C. § 1447(b). If USCIS denies a naturalization application, the applicant may administratively appeal the denial by requesting a hearing before an immigration officer by submitting a Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA). 8 U.S.C. § 1447(a); 8 C.F.R. § 336.2(b). If, after administratively appealing the denial, USCIS sustains a naturalization denial, an applicant may seek de novo review of naturalization eligibility with the district court. See 8 U.S.C. §§ 1447(a), 1421(c).
Alwan alleges that in April 2008, USCIS created CARRP, an agency-wide policy for identifying, processing, and adjudicating immigration applications that raise “national security concerns.” (AC at ¶ 63). She claims that a “national security concern” arises when an individual or organization has been determined to have an “articulable link … to prior, current, or planned involvement in, or association with, an activity, individual or organization” that “has engaged in terrorist activity” or who is a member of a “terrorist organization” under the INA. (AC at ¶ 69).
If a USCIS officer identifies an application posing a “national security concern,” the application is removed from the agency’s routine adjudication track and thereafter subjected to CARRP’s rules and procedures that guide officers to deny or delay adjudication of those applications. (AC at ¶ 68, 92). One such procedure, “deconfliction,” requires USCIS to coordinate with the law enforcement agency, often the Federal Bureau of Investigations, that possesses information giving rise to the supposed national security concern. (AC at ¶¶ 93-95).
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Alwan alleges USCIS often makes decisions to deny immigration applications because the FBI requests or recommends the denial, not because the person was statutorily ineligible for the benefit. (AC at ¶ 96). This allows law enforcement and intelligence agencies to directly affect the adjudication of a requested immigration benefit. (AC at ¶ 95).
In addition to “deconfliction,” once officers identify an applicant as a “national security concern,” CARRP directs officers to perform an “eligibility assessment” to determine whether the applicant is eligible for the benefit sought. (AC at ¶ 97). According to Alwan, CARRP instructs officers to look for any possible reason to deny an application so that “valuable time and resources are not unnecessarily expended” on further investigation. (AC at ¶ 98). This results in officers inventing false or pretextual reasons to deny the applications. (Id.) If an officer cannot find a reason to deny the application, Alwan claims that CARRP instructs officers to “internally vet” the “national security concern” using information available through the Department of Homeland Security’s systems and databases, open source information, review of the applicant’s file, and interviews or site visits. (AC at ¶ 99). After conducting the eligibility assessment and internal vetting, USCIS officers are again instructed to conduct “deconfliction” to determine the position of any interested law enforcement agency. (AC at ¶ 100). If the “national security concern” remains and the officer cannot find a basis to deny the benefit, Alwan claims the application proceeds to “external vetting,” during which time USCIS officers and law enforcement agents confirm the existence of the “national security concern.” (AC at ¶¶ 101-02). CARRP authorizes officers to hold applications in abeyance for periods of 180 days to enable law enforcement agents and USCIS officers to investigate the “national security concern.” (AC at ¶ 103). The Field Office Director may extend the abeyance periods so long as the investigation remains open, and Alwan alleges that CARRP provides no outer limit on how long USCIS may
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hold a case in abeyance, despite the statutory requirement under INA that USCIS adjudicate a naturalization application within 120 days of examination. (AC at ¶¶ 103-04).
In essence, Alwan’s complaint takes issue with USCIS’s delay in adjudication of applications when it cannot find a reason to deny the application by subjecting that application to CARRP. (AC at ¶ 108). Alwan also claims that when an applicant files a mandamus action with the district court to compel USCIS to adjudicate a pending application, that filing often has the effect of forcing USCIS to deny the statutorily-eligible application because CARRP prevents agency field officers from granting an application involving a “national security concern.” (Id.). Alwan claims CARRP effectively creates two substantive regimes for immigration application and processing: one for those applications subject to CARRP and one for all other applications. (AC at ¶ 109). She claims CARRP results in extraordinary processing and adjudication delays, often lasting many years, and baseless denials of statutorily-eligible immigration applications. (AC at ¶ 111).
Discussion Defendants argue that Alwan’s complaint should be dismissed for lack of subject matter jurisdiction because USCIS has adjudicated her naturalization application, rendering the relief she seeks moot. Alternatively, Defendants argue that to the extent Alwan’s complaint is construed as a challenge to her naturalization denial, it should be dismissed for lack of ripeness because she has filed an administrative appeal of her denial, which remains pending with USCIS. See 8 C.F.R. § 316.10(b)(3)(iii); see also 8 U.S.C. §§ 1101(f), 1427(a)(3). Alwan does not address Defendants’ arguments for dismissal on mootness and ripeness grounds. Instead, she asserts that once a naturalization applicant files a complaint with a district court alleging unreasonable adjudication delay, as she has done here, the plain language of 8 U.S.C. § 1447
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confers exclusive jurisdiction on the district court to decide the matter. Alwan argues that USCIS was precluded from taking any action on her pending naturalization application and that the purported denial by USCIS is null and should be disregarded by this Court. Defendants note and the Court agrees that Alwan’s argument is belied by the fact that her counsel did not challenge USCIS’s jurisdiction to adjudicate the naturalization applications of the nineteen former Plaintiffs while the amended complaint was pending before this Court (Doc. No. 26 at 3-4).
Furthermore, this Court recently rejected an identical argument in Haroun v. United States Department of Homeland Security, No. 4:16CV01511 JAR, 2017 WL 3168530 (E.D. Mo. July 26, 2017), ruling that § 1447(b) grants concurrent jurisdiction over a naturalization application to the district court once a plaintiff files a complaint. Id. at *5-6 (“[T]he Court finds that USCIS properly exercised its jurisdiction over Haroun’s application when it issued its denial while Haroun’s lawsuit was pending before the Court.”). Since this lawsuit was filed, USCIS completed its review of Alwan’s application and denied it, rendering the relief she seeks in the amended complaint moot. Mootness is a jurisdictional bar. Id. at *6 (citing Arkansas AFL-CIO v. F.C.C., 11 F.3d 1430, 14235 (8th Cir. 1993)). Moreover, Alwan has administratively appealed her denial, and until the USCIS resolves her appeal, this matter is not ripe for review.
Alwan does not address the remaining claims in the complaint challenging CARRP on constitutional and statutory grounds. Defendants argue these claims must also be dismissed for lack of subject matter jurisdiction because Alwan lacks standing to bring them (Doc. No. 22 at 5 n.8). The Court addressed the standing issue in Haroun, and concluded that the plaintiff had no present interest, “other than vindication,” in a declaratory judgment on his claims arising from USCIS’s application of CARRP as to him, and thus failed to allege an injury sufficient to confer standing. 2017 WL 3168530, at *7. Likewise, Alwan has not alleged a substantial likelihood of
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future injury. She argues that her interest in United States citizenship has been adversely affected by the application of CARRP to her naturalization application. (AC at ¶¶ 116, 121, 125, 130, 135). In actuality, each of her constitutional and statutory claims is grounded in the alleged procedural deficiencies in USCIS’s review of her application—a review that has concluded. As Defendants point out, while Alwan may submit another naturalization application, the application at issue here has been adjudicated and is now under administrative appeal. Thus, there is no likelihood that this application will ever come before USCIS again for adjudication. Given Alwan’s lack of standing, the CARRP claims will also be dismissed for lack of subject matter jurisdiction.
For these reasons, the amended complaint will be dismissed without prejudice for lack of subject matter jurisdiction.
Accordingly, IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss the First Amended Complaint [22] is GRANTED. A separate judgment of dismissal will accompany this Memorandum and Order.
Dated this 24th day of August, 2017.
JOHN A. ROSS UNITED STATES DISTRICT JUDGE
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 Case: 4:16-cv-692 As of: 01/18/2018 06:58 PM CST 1 of 9
U.S. District Court Eastern District of Missouri (St. Louis) CIVIL DOCKET FOR CASE #: 4:16−cv−00692−JAR

CLOSED

Arapi et al v. U.S. Citizenship & Immigration Services et al Assigned to: District Judge John A. Ross Cause: 08:1329 Writ of Mandamus to Adjudicate Visa Petiti
Plaintiff

Date Filed: 05/18/2016 Date Terminated: 08/24/2017 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: Federal Question

Eriola Arapi TERMINATED: 08/29/2016

represented by James O. Hacking , III HACKING LAW PRACTICE, LLC 34 N. Gore Suite 101 St. Louis, MO 63119 314−961−8200 Fax: 314−961−8201 Email: jim@hackinglawpractice.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Andrew West CAIR−MISSOURI 13408 Clayton Rd. St. Louis, MO 63131 314−717−1088 Email: rwest@cair.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Samina Syed TERMINATED: 10/05/2016

represented by James O. Hacking , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Andrew West (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Wafaa Alwan

represented by James O. Hacking , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Andrew West (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Saqib Sarwar TERMINATED: 08/29/2016

represented by James O. Hacking , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 4:16-cv-692 As of: 01/18/2018 06:58 PM CST 2 of 9

Robert Andrew West (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Syed Asghar Ali TERMINATED: 08/29/2016

represented by James O. Hacking , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Andrew West (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Mohammad A Al Muttan TERMINATED: 12/12/2016

represented by James O. Hacking , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Andrew West (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Ibrahim Mohamed Zidan TERMINATED: 12/12/2016

represented by James O. Hacking , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Andrew West (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Hanaa B. Kayem TERMINATED: 08/29/2016

represented by James O. Hacking , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Andrew West (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Abubakar Ahmed Abulfathi TERMINATED: 12/12/2016

represented by James O. Hacking , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Andrew West (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff

Case: 4:16-cv-692 As of: 01/18/2018 06:58 PM CST 3 of 9

Mirzeta Tursunovic TERMINATED: 12/12/2016

represented by James O. Hacking , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Andrew West (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Amina Tursunovic TERMINATED: 10/05/2016

represented by James O. Hacking , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Andrew West (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Syed Tariq Ali TERMINATED: 06/21/2016

represented by James O. Hacking , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Andrew West (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Mohammad S. Jauda TERMINATED: 08/29/2016

represented by James O. Hacking , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Andrew West (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Sharafat Y Mohammad TERMINATED: 10/05/2016

represented by James O. Hacking , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Andrew West (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Adnan Sawlan TERMINATED: 12/12/2016

represented by James O. Hacking , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Andrew West (See above for address)

Case: 4:16-cv-692 As of: 01/18/2018 06:58 PM CST 4 of 9

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Sory Ibrahim Doumbia TERMINATED: 08/29/2016

represented by James O. Hacking , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Andrew West (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Mahmood Ali Mansur TERMINATED: 08/29/2016

represented by James O. Hacking , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Andrew West (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Musrath Jahan Baig TERMINATED: 08/29/2016

represented by James O. Hacking , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Andrew West (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Abdelsamed Alamin TERMINATED: 08/29/2016

represented by James O. Hacking , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Andrew West (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Abdolreza Osouli TERMINATED: 10/05/2016

represented by James O. Hacking , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Andrew West (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Nermin Busevac TERMINATED: 08/29/2016

represented by James O. Hacking , III (See above for address)

Case: 4:16-cv-692 As of: 01/18/2018 06:58 PM CST 5 of 9
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Andrew West (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant U.S. Citizenship & Immigration Services
Defendant Jeh Johnson in his official capacity as Secretary of Homeland Security
Defendant Leon Rodriguez in his official capacity as Director of U.S. Citizenship and Immagration Services
Defendant Matthew D. Emrich in his official capacity as Associate Director, Fraud Detection and National Security Directorate of U.S. Citizenship and Immigration Services

represented by Christopher Wayne Hollis U.S. DEPARTMENT OF JUSTICE 450 Fifth Street, NW Liberty Square Bldg. Washington, DC 20001 202−305−0899 Fax: 202−616−8962 Email: christopher.hollis@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jane Rund OFFICE OF U.S. ATTORNEY 111 S. Tenth Street 20th Floor St. Louis, MO 63102 314−539−7636 Fax: 314−539−2777 Email: jane.rund@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher Wayne Hollis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jane Rund (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher Wayne Hollis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jane Rund (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher Wayne Hollis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jane Rund

Case: 4:16-cv-692 As of: 01/18/2018 06:58 PM CST 6 of 9

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Daniel Renaud in his official capacity as District Director of the Kansas City District Office, U.S. Citizenship and Immigration Services

represented by Christopher Wayne Hollis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jane Rund (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
David Douglas in his official capacity as District Director of the Kansas City District Office, U.S. Citzenship and Immigration Services

represented by Christopher Wayne Hollis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jane Rund (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Chester S. Moyer in his official capacity as Director of St. Louis Field Office of the U.S. Citienship and Immigration Services

represented by Christopher Wayne Hollis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jane Rund (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/18/2016
05/18/2016 06/21/2016 06/21/2016

# Docket Text
1 COMPLAINT against defendant All Defendants with receipt number 0865−5407761, in the amount of $400 Non−Jury Demand,, filed by Amina Tursunovic, Ibrahim Mohamed Zidan, Samina Syed, Eriola Arapi, Mohammad S. Jauda, Mohammad A Al Muttan, Wafaa Alwan, Abubakar Ahmed Abulfathi, Syed Tariq Ali, Hanaa B. Kayem, Saqib Sarwar, Mirzeta Tursunovic, Syed Asghar Ali. (Attachments: # 1 Original Filing Form, # 2 Civil Cover Sheet, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons, # 8 Summons, # 9 Summons, # 10 Summons)(Hacking, James) (Entered: 05/18/2016)
Case Opening Notification: 8 Summons(es) issued. The summons was emailed to James O. Hacking, III. Judge Assigned: Honorable John A. Ross. (MFG) (Entered: 05/18/2016)
2 NOTICE of Voluntary Dismissal by Syed Tariq Ali of Said Plaintiff's Claims Only Without Prejudice (Hacking, James) (Entered: 06/21/2016)
3 AMENDED COMPLAINT against defendant All Defendants , filed by Amina Tursunovic, Ibrahim Mohamed Zidan, Samina Syed, Eriola Arapi, Mohammad S. Jauda, Mohammad A Al Muttan, Wafaa Alwan, Abubakar Ahmed Abulfathi, Syed Tariq Ali, Hanaa B. Kayem, Saqib Sarwar, Mirzeta Tursunovic, Syed Asghar Ali, Sharafat Y Mohammad, Adnan Sawlan, Sory Ibrahim Doumbia, Mahmood Ali Mansur, Musrath Jahan Baig, Abdelsamed Alamin, Abdolreza Osouli, Nermin Busevac.(Hacking, James) (Entered: 06/21/2016)

Case: 4:16-cv-692 As of: 01/18/2018 06:58 PM CST 7 of 9

06/21/2016 06/30/2016 06/30/2016 07/02/2016
07/05/2016 07/12/2016 07/12/2016 07/25/2016
08/28/2016 08/29/2016 09/01/2016 09/01/2016 09/17/2016

4 ORDER re 2 NOTICE of Voluntary Dismissal by Syed Tariq Ali: SO ORDERED. Syed Tariq Ali terminated. Signed by District Judge John A. Ross on 6/21/16. (JAB) (Entered: 06/22/2016)
5 ENTRY of Appearance by Christopher Wayne Hollis for Defendants David Douglas, Matthew D. Emrich, Jeh Johnson, Chester S. Moyer, Daniel Renaud, Leon Rodriguez, U.S. Citizenship & Immigration Services. (Hollis, Christopher) (Entered: 06/30/2016)
6 ENTRY of Appearance by Jane Rund for Defendants David Douglas, Matthew D. Emrich, Jeh Johnson, Chester S. Moyer, Daniel Renaud, Leon Rodriguez, U.S. Citizenship & Immigration Services. (Rund, Jane) (Entered: 06/30/2016)
7 MOTION for Leave to File First Amended Complaint (Docket # 3) by Plaintiffs Abubakar Ahmed Abulfathi, Mohammad A Al Muttan, Abdelsamed Alamin, Syed Tariq Ali, Syed Asghar Ali, Wafaa Alwan, Eriola Arapi, Musrath Jahan Baig, Nermin Busevac, Sory Ibrahim Doumbia, Mohammad S. Jauda, Hanaa B. Kayem, Mahmood Ali Mansur, Sharafat Y Mohammad, Abdolreza Osouli, Saqib Sarwar, Adnan Sawlan, Samina Syed, Amina Tursunovic, Mirzeta Tursunovic, Ibrahim Mohamed Zidan. (Hacking, James) (Entered: 07/02/2016)
8 Docket Text ORDER: Re: 7 MOTION for Leave to File First Amended Complaint (Docket # 3) by Plaintiffs. ; ORDERED GRANTED. Signed by District Judge John A. Ross on 7/5/16. (JAB) (Entered: 07/05/2016)
9 Consent MOTION for Extension of Time to File Answer Defendants' Unopposed Motion for Extension of Time to Respond to the First Amended Complaint by Defendants David Douglas, Matthew D. Emrich, Jeh Johnson, Chester S. Moyer, Daniel Renaud, Leon Rodriguez, U.S. Citizenship & Immigration Services. (Hollis, Christopher) (Entered: 07/12/2016)
10 Docket Text ORDER: GRANTING 9 Consent MOTION for Extension of Time to Respond to the First Amended Complaint by Defendants David Douglas, Matthew D. Emrich, Jeh Johnson, Chester S. Moyer, Daniel Renaud, Leon Rodriguez, U.S. Citizenship & Immigration Services. ( Response to Court due by 9/5/2016.). Signed by District Judge John A. Ross on 7/12/16. (KKS) (Entered: 07/12/2016)
11 ENTRY of Appearance by Robert Andrew West for Plaintiffs Abubakar Ahmed Abulfathi, Mohammad A Al Muttan, Abdelsamed Alamin, Syed Tariq Ali, Syed Asghar Ali, Wafaa Alwan, Eriola Arapi, Musrath Jahan Baig, Nermin Busevac, Sory Ibrahim Doumbia, Mohammad S. Jauda, Hanaa B. Kayem, Mahmood Ali Mansur, Sharafat Y Mohammad, Abdolreza Osouli, Saqib Sarwar, Adnan Sawlan, Samina Syed, Amina Tursunovic, Mirzeta Tursunovic, Ibrahim Mohamed Zidan. (West, Robert) (Entered: 07/25/2016)
12 NOTICE of Voluntary Dismissal by Abdelsamed Alamin, Syed Asghar Ali, Eriola Arapi, Musrath Jahan Baig, Nermin Busevac, Sory Ibrahim Doumbia, Mohammad S. Jauda, Hanaa B. Kayem, Mahmood Ali Mansur, Saqib Sarwar (Hacking, James) (Entered: 08/28/2016)
13 ORDER re: 12 NOTICE of Voluntary Dismissal, Eriola Arapi, Musrath Jahan Baig, Nermin Busevac, Sory Ibrahim Doumbia, Mohammad S. Jauda, Hanaa B. Kayem, Mahmood Ali Mansur, Saqib Sarwar, Abdelsamed Alamin and Syed Asghar Ali terminated. Signed by District Judge John A. Ross on 8/29/2016. (CLO) (Entered: 08/29/2016)
14 Second MOTION for Extension of Time to File Response/Reply as to 3 Amended Complaint, by Defendants David Douglas, Matthew D. Emrich, Jeh Johnson, Chester S. Moyer, Daniel Renaud, Leon Rodriguez, U.S. Citizenship & Immigration Services. (Rund, Jane) (Entered: 09/01/2016)
15 ORDER: IT IS HEREBY ORDERED that Defendants' Second Motion for Extension of Time to Respond to the First Amended Complaint 14 is GRANTED. Signed by District Judge John A. Ross on 9/1/2016. (CLO) (Entered: 09/01/2016)
16 NOTICE of Voluntary Dismissal by Sharafat Y Mohammad, Abdolreza Osouli, Adnan Sawlan, Samina Syed (Hacking, James) (Entered: 09/17/2016)

Case: 4:16-cv-692 As of: 01/18/2018 06:58 PM CST 8 of 9

10/05/2016 10/12/2016 10/13/2016
12/08/2016 12/12/2016 12/19/2016
12/26/2016 12/27/2016 01/03/2017 01/10/2017 06/01/2017 08/24/2017 08/24/2017

17 ORDER re 16 Notice of Voluntary Dismissal. Samina Syed, Amina Tursunovic, Sharafat Y Mohammad and Abdolreza Osouli terminated. Signed by District Judge John A. Ross on 10/5/16. (JAB) (Entered: 10/05/2016)
18 Consent MOTION for Extension of Time to File Answer Defendants' Unopposed Third Motion for Extension of Time to Respond to the First Amended Complaint by Defendants David Douglas, Matthew D. Emrich, Jeh Johnson, Chester S. Moyer, Daniel Renaud, Leon Rodriguez, U.S. Citizenship & Immigration Services. (Hollis, Christopher) (Entered: 10/12/2016)
19 Docket Text ORDER: Re: 18 Consent MOTION for Extension of Time to File Answer Defendants' Unopposed Third Motion for Extension of Time to Respond to the First Amended Complaint by Defendants David Douglas, Matthew D. Emrich, Jeh Johnson, Chester S. Moyer, Daniel Renaud, Leon Rodriguez, U.S. Citizenship & Immigration Services. (Hollis, Christopher) filed by David Douglas, Jeh Johnson, Daniel Renaud, Leon Rodriguez, U.S. Citizenship & Immigration Services, Matthew D. Emrich, Chester S. Moyer ; ORDERED GRANTED, ( Response to Court due by 12/19/2016.). Signed by District Judge John A. Ross on 10/13/2016. (CLO) (Entered: 10/13/2016)
20 THIRD NOTICE of Voluntary Dismissal by Abubakar Ahmed Abulfathi, Mohammad A Al Muttan, Adnan Sawlan, Mirzeta Tursunovic, Ibrahim Mohamed Zidan (Hacking, James) (Entered: 12/08/2016)
21 ORDER re 20 THIRD NOTICE of Voluntary Dismissal. SO ORDERED. Adnan Sawlan, Mirzeta Tursunovic, Ibrahim Mohamed Zidan, Abubakar Ahmed Abulfathi and Mohammad A Al Muttan terminated. Signed by District Judge John A. Ross on 12/12/16. (JAB) (Entered: 12/12/2016)
22 MOTION to Dismiss Case Defendants' Motion to Dismiss the First Amended Complaint by Defendants David Douglas, Matthew D. Emrich, Jeh Johnson, Chester S. Moyer, Daniel Renaud, Leon Rodriguez, U.S. Citizenship & Immigration Services. (Attachments: # 1 Exhibit Ex. A −− Denial Decision by USCIS on Plaintiff Alwan's Form N−400, Application for Naturalization, # 2 Exhibit Ex. B −− Form N−336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA) submitted by Plaintiff Alwan)(Hollis, Christopher) (Entered: 12/19/2016)
23 First MOTION for Extension of Time to File Response/Reply as to 22 MOTION to Dismiss Case Defendants' Motion to Dismiss the First Amended Complaint by Plaintiff Wafaa Alwan. (Hacking, James) (Entered: 12/26/2016)
24 Docket Text ORDER: GRANTING 23 First MOTION for Extension of Time to File Response to 22 MOTION to Dismiss Case Defendants' Motion to Dismiss the First Amended Complaint by Plaintiff Wafaa Alwan ; the Defendants will have up to and including January 10, 2017 to file their reply ( Response to Court due by 1/3/2017.). Signed by District Judge John A. Ross on 12/27/16. (KKS) (Entered: 12/27/2016)
25 RESPONSE to Motion re 22 MOTION to Dismiss Case Defendants' Motion to Dismiss the First Amended Complaint filed by Plaintiff Wafaa Alwan. (Hacking, James) (Entered: 01/03/2017)
26 REPLY to Response to Motion re 22 MOTION to Dismiss Case Defendants' Motion to Dismiss the First Amended Complaint filed by Defendants David Douglas, Matthew D. Emrich, Jeh Johnson, Chester S. Moyer, Daniel Renaud, Leon Rodriguez, U.S. Citizenship & Immigration Services. (Hollis, Christopher) (Entered: 01/10/2017)
27 NOTICE of Indictment of Plaintiff by Defendants David Douglas, Matthew D. Emrich, Jeh Johnson, Chester S. Moyer, Daniel Renaud, Leon Rodriguez, U.S. Citizenship & Immigration Services (Attachments: # 1 Exhibit A − Indictment )(Rund, Jane) (Entered: 06/01/2017)
28 MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants Motion to Dismiss the First Amended Complaint [ 22 ] is GRANTED. A separate judgment of dismissal will accompany this Memorandum and Order. Signed by District Judge John A. Ross on 8/24/17. (JAB) (Entered: 08/24/2017)
29 JUDGMENT OF DISMISSAL: Pursuant to the Memorandum and order filed this day, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Plaintiffs complaint is DISMISSED without prejudice. Signed by District Judge John A. Ross on 8/24/17.

Case: 4:16-cv-692 As of: 01/18/2018 06:58 PM CST 9 of 9 (JAB) (Entered: 08/24/2017)