UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) AMRIT PAL SINGH, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-499 (RBW) ) JANET NAPOLITANO, ) Secretary of Homeland Security, ) et al. , ) ) Defendants. ) ____________________________________)

MEMORANDUM OPINION Amrit Pal Singh, the plaintiff in this civil lawsuit, seeks, inter alia , “an order requiring [defendants Janet Napolitano, Sarah Taylor, a nd Eric Holder] to promptly adjudicate his [a]pplication for [a]djustment of [s]tatus to permanent residency and to issue a declaratory judgment declaring that [the Unite d States Customs and Immigrati on Service]’s [alleged] failure to respond for almost nine years to a request for an approval of adju stment of status is an abuse

of discretion.” 1 Petition for Writ of Mandamus, Declarat ory Judgment, and In junctive Relief for Delaying the Decision on the Application for Adjustme nt of Status (the “Pl.’s Pet.”) at 7. On July 24, 2009, the defendants filed a motion to dism iss the plaintiff’s Petition for lack of subjectmatter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) or for summary judgment pursuant to Federal Rule of Civ il Procedure 56. Memorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss[] or[,] in the [Alternative], for

1 The plaintiff is suing each of the de fendants in their official capacities—Ms. Napolitano as Secretary of Homeland Security, Ms. Taylor as District Direct or for the United States Citizenship and Immigration Services, and Mr. Holder as Attorney General.2 Summary Judgment (the “Defs.’ Mem.”) at 1. The Court held a hearing on the merits of the defendants’ motion on March 22, 2010, and after careful ly considering the parties’ arguments at the hearing, the defendants’ motion to dismi ss or for summary judgme nt, and all relevant submissions and attachments thereto, 2 the Court concludes, as it di d at the hearing, that it lacks subject-matter jurisdiction to entertain this case.

I. Background 3 The plaintiff is a citizen of India who current ly resides in the United States pursuant to a grant of asylum issued on May 12, 1999. Defs.’ St mt. of Facts ¶1. Based on his asylum status, the plaintiff “filed an adjustment of status application (Form I-485) on August 14, 2000.” Pl.’s Pet. ¶ 6. Presumably as part of adjudicating the plaintiff’s adjustment of status application, the defendants reviewed the plaintiff’ s asylum application, in which th ey discovered that the plaintiff was a member of and provided material support to the Babbar Khalsa International, and provided material support to the Sikh Student Federation, Bittu Faction, Defs.’ Stmt. of Facts ¶ 2, both

considered to be Tier II and Tier III terroris t organizations, respectively, Defs’ Mot. at 4-5. Pursuant to a March 26, 2008 memorandum issued by the United States Citizenship and Immigration Services’ (“USCIS”) deputy director (the “Policy Me morandum”), its current policy

2 In addition to the plaintiff’s Petition and the defendants ’ motion to dismiss and their memorandum of points and authorities in support thereof, the Court considered the following documents in rendering its decision: (1) the Plaintiff’s Opposition to Defendant[]s[’] Motion to Dismiss, or[,] in the Alte rnative, for Summary Judgment (the “Pl.’s Opp’n”); (2) Defendants’ Statement of Undisputed Ma terial Facts (the “Defs.’ St mt. of Facts”); and (3) the Defendants’ Reply in Further Support of Their Motion to Di smiss, or[,] in the Alternative, for Summary Judgment.

3 The plaintiff has failed to file a statement of material facts in compliance with Local Rule 7(h), and thus the Court will treat the defendants’ asserted facts as undisputed. Loca l Civ. R. 7(h) (stating that “[i]n determining a motion for summary judgment, the court may assume that facts iden tified by the moving party in its statement of material facts are admitted, unless such fact is controverted in the statement of genuine issues filed in opposition to the motion”); Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner , 101 F.3d 145, 154 (D.C. Cir. 1996) (affirming decision in defendant’s favor after plaintiff’s statement failed to rebut the defendant’s statement); Wiesner v. FBI , 577 F. Supp. 2d 450, 452 (D.D.C. 2008) (Walton, J.) (“The Court therefore treats the [def endant’s] asserted facts as undisputed for purposes of its motion to dismiss or for summary judgment.”).3 regarding applications fo r adjustment of status for asylees who have provided material support to terrorist organizations is to withhold adjudicatio n of cases that could pot entially benefit from the Secretary’s authority, after consul tation with the Attorney General, to determine in her “sole unreviewable discretion” whether to grant a waiv er of inadmissibility to a particular person, 8 U.S.C. § 1182(d)(3)(B)(i) (2006), who affords s upport to a Tier II and Tier III terrorist organization, 8 U.S.C. § 1182(a) (3)(B) (2006). Defs.’ Stmt. of Facts ¶¶ 4-5. Thus, the defendants have not adjudicated the plaintiff’s adjustment of status application due to this policy.

Id. ¶ 5. The plaintiff filed this action on March 16, 2009, arguing that “the [d]efendants have unlawfully withheld and unreasonably delayed action on [the p]laintiff’s application,” pursuant to 5 U.S.C. § 706 (2006). Pl.’s Pet. ¶ 24. The pl aintiff seeks declarator y relief and a writ of mandamus. Pl.’s Pet. at 7. The defendants, fo r their part, argue that the plaintiff’s petition should be dismissed on subject-matter jurisdicti on grounds. Specifically, the defendants argue that as to Attorney General Holder, the case should be dismissed because the “[p]laintiff’s [a]pplication is not being delayed due to any background checks or any ac tivities of the FBI or DOJ, and thus, [the plaintiff] l acks standing to sue the FBI or DOJ because he is not suffering any injury by virtue of their activ ities.” Defs.’ Mot. at 7. As to the remaining defendants, they argue that the USCIS’s decision to hold the plaintiff’s adjustment of status application in abeyance is a discretionary deci sion that falls outside of this Court’s jurisdiction under the Immigration and Nationality Act, 8 U.S.C. § 1252(a)(2)(B).

II. Standard of Review In deciding a motion to dismiss based upon lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), a Court is not limited to the allegations set forth in the4 complaint, but “may consider materials outside of the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction[ .]” Jerome Stevens Pharms., Inc. v. FDA , 402 F.3d 1249, 1253 (D.C.Cir. 2005). Under Rule 12(b)(1), “[ i]t is to be presum ed that a cause lies outside [the federal courts'] limited jurisdiction,” K okkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377 (1994), unless the plaintiff estab lishes by a preponderance of the evidence that the Court possesses jurisdiction, see e.g. Hollingsworth v. Duff , 444 F. Supp. 2d 61, 63 (D.D.C. 2006) (Collyer, J.). Furthermore, because the defendants are alleging that Section 1252(a)(2)( B)(ii) strips this Court of jurisdiction, they must “overcome the str ong presumption in favor of judicial review of administrative action.” INS v. St. Cyr , 533 U.S. 289, 298 (2001). Thus, only upon a “showing of clear and convincing ev idence of a contrary le gislative intent [should] the courts restrict access to judicial review.” Bd. of Governor s of the Fed. Reserve Sys. v. MCorp Fin., Inc. , 502 U.S. 32, 44 (1991) (citation and in ternal quotation marks omitted). But, the Court also must be mindful of “the general rule that courts should refrain from interfering with matters of immigration and national s ecurity.” Orlov v. Howard , 523 F. Supp. 2d 30, 36 (D.D.C. 2007) (Bates, J.); see also INS v. Aguirre-Aguirre , 526 U.S. 415, 425 (1999) (“[J ]udicial deference to the Executive Branch is especially appropriate in the immigration context where officials exercise especially sensitive political functions that implicate questions of foreign relations” (internal quotation marks omitted)).

III. Legal Analysis As an initial matter, it does not appear from the face of the plaintiff’s Petition that he has set forth sufficient allegations to establish Articl e III standing to bring suit against the Attorney General or the Department of Justice. “To demonstrate st anding under Article III of the5 Constitution, [the plaintiff] must show an injury in fact caused by the defendant and redressable by judicial relief.” Stilwell v. Office of Thrift Supervision , 569 F.3d 514, 518 (D.C. Cir. 2009) (citing Lujan v. Defenders of Wildlife , 504 U.S. 555, 560-61 (1992)). A qualifying injury must be “concrete and particularized” and either “actual or imminent.” City of Dania Beach, Fla. v.

FAA , 485 F.3d 1181, 1185 (D.C. Cir. 2007) (cit ing Fla. Audubon Soc'y v. Bentsen , 94 F.3d 658, 663 (D.C. Cir. 1996)). Here, the plaintiff alle ges that the FBI had th e responsibility for completing a background name check on the pl aintiff, that “[t]he background check unduly delayed the processing of [the p]laintiff’s adjustment applic ation,” and that “thousands of applicants are facing name check[] delays by the FBI and other agencies for no reason whatsoever.” Pl.’s Pet. ¶ 20. However, the plai ntiff does not allege any harm flowing from this delay; indeed, his position is that regardless of the delay, he is entitled to have his adjustment of status application granted under current USCIS policy. See id. ¶¶ 19-20 (claiming that the USCIS’s policy is to grant adjust ment of status applications “even when the FBI name check request has been pending for more than 180 days”) . So, even assuming that there has been a delay in completing the FBI name check, the plaint iff has not alleged an injury-in-fact necessary for Article III standing to raise a claim against the Attorney General. 4 The Court will, therefore, dismiss the plaintiff’s claims against the Attorney General. As to the remaining defendants, the overarching issue before the Court is whether subject-matter jurisdiction exists to adjudicate th e plaintiff’s Petition to compel the USCIS to

4 Even assuming that the plaintiff has standing to bring an action against the Attorney General, summary judgment nonetheless would have to be issued for the Attorney General. The defendants assert in their Statement of Undisputed Facts that “[t]he FBI provided the results of a name check regarding [the p]laintiff’s [a]pplication to USCIS on September 10, 2003.” Defs.’ Stmt. of Facts ¶ 5. As noted above in footnote 1, the plaintiff has not disputed this assertion. Thus, the Court may treat the defendants’ assertion as true and conclude that the plaintiff’s claim against the Attorney General is moot because the name check has now been completed. Therefore, the Attorney General would be entitled to summary judgment notw ithstanding the justiciability defect of the plaintiff’s Petition.6 rule on his Form I-485 applicati on. The jurisdiction-stripping st atute at issue in this case, 8 U.S.C. § 1252(a)(2)(B)(ii) , states the following: Notwithstanding any other prov ision of law (statutory or nonstatutory) . . . no court shall have jurisdicti on to review . . . any othe r decision or action of the Attorney General or the Secr etary of Homeland Security the authority for which is specified under this subchapt er to be in the discretion of the Attorney General or the Secretary of Homeland Security . . . .

Considered in the context of its individual components, the defendants can establish the applicability of Section 1252(a)(2)(B)(ii) by demonstrating that (1) the holding of the plaintiff’s application in abeyance is within the discretion of the Secretary of Ho meland Security; (2) the discretion exercised by the Secretar y is one that is “specified unde r this subchapter”; and (3) the specified discretion is an “action” as that term is used in the statute. Two members of this Court

have reached different conclusions as to whethe r a decision to hold an application in abeyance meets all three elements. Compare Orlov , 523 F. Supp. 2d at 37 (holding that the pace of processing an adjustment of status application is a discretionary decision which the INA removes from this Court’s jurisdiction) with Liu v. Novak , 509 F. Supp. 2d 1, 6-7 (D.D.C. 2007) (Sullivan, J.) (finding that § 1252(a)(2)(B)(ii) did not bar plaintiff’s claim because agency inaction does not satisfy the action requirement and pace of processing does not fall under the Attorney General’s discretion, and, furthermore, that the Secretary’s discretion is not one that is “specified under th is subchapter”). 5 Upon evaluating the Orlov and Liu decisions, this member of the Court believes that Judge Bates’s approach in Orlov is the correct approach and concludes that the government’s decision to hold the plaintiff’s application in abeyance falls within the purview of discretionary decisi ons or actions that fall outside this Court’s jurisdiction.

5 The District of Columbia Circuit has not issued a decision addressing this issue. Orlov , 523 F. Supp. 2d at 34.7 In assessing the first component of Section 1252(a)(2)(B)(ii), the Court’s analysis starts with 8 U.S.C. § 1182(d)(3)(B)(i), which states that with few exceptions, “the Secretary of Homeland Security, after consultation with the Se cretary of State and the Attorney General, may determine in such Secretary’s sole unreviewable discretion that subsection (a)(3)(B) of this section shall not apply with resp ect to an alien within the scope of that subsection” (emphasis added). The Secretary also has discretion to prom ulgate regulations that she feels are necessary to exercise her authority to grant pe rmanent resident status to an asylee. See 8 U.S.C. § 1159(b) (providing that the Secretary of Homeland Securit y, “in the Secretary’s . . . discretion and under such regulations as the Secretary . . . may prescribe , may adjust to the status of an alien lawfully admitted for permanent residence the status of any alien granted asylum”). As Judge Bates observed in regards to an analogous statute, “[t]he plain meaning of this statute . . . is to grant [the Secretary] the power an d the discretion to promulgate regulations governing how (and when) adjustment decisions are made, but not to prescribe any time limitation whatsoever.”

Orlov , 523 F. Supp. 2d at 34 (a nalyzing 8 U.S.C. § 1255(a), which pr ovides that “[t] he status of an alien . . . may be adjusted by the Attorn ey General, in his di scretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence”

status under certain circum stances) (emphasis added). And even putting asid e the congressional grant of discretion provided by Section 1159(b ) to determine how and when adjustment decisions are made, it is well-settled that, as a general matter, the Secretary also has the discretion to “fashion [her] own ru les of procedure and to pursue methods of inquiry capable of permitting [her] to discharge [her] multitudinous duties.” 6 Vermont Yankee Nuclear Power

6 The plaintiff asserted during the March 22, 2010 hearing that the USCIS must first rule on his adjustment of status application before the Secretary can assess whether a waiver of inadmissibility is a ppropriate, and that because the agency’s review of the plaintiff’s application involves “n ondiscretionary, or purely legal, decisions regarding an (continued . . .)8 Corp. v. Natural Resources Defense Council , 435 U.S. 519, 543 (1978); cf. Federal Power

Commission v. Transcontinenta l Gas Pipe Line Corp. , 423 U.S. 326, 333 (1976) (reversing circuit court’s order requ iring an investigation to be conduct ed within 30 days, on the grounds that “[a]t least in the absence of substantial ju stification for doing otherw ise, a reviewing court may not . . . proceed by dictating to the agency the methods, procedures, and time dimension of the needed inquiry”). And pursuant to this clear ly-established statutory and case authority, the Secretary presumably opted to rely on her general discretion to fashion procedural rules under

Vermont Yankee in issuing the Policy Memorandum to assist the agency in “considering several groups and categories of cases as possible candidates for additiona l terrorist-related inadmissibility provision exemptions.” Defs.’ Mem., Ex. 2 (March 26, 2008 Policy Memorandum), at 2. Thus, under th e statutory scheme and the rele vant case law, the Court has no doubt that the Secretary has the discretion to hold the plaintiff’s a pplication in abeyance. The next step in the Court’s analysis is to determine whether the Secretary’s discretion is “specified” under the same title, chapter, and subchapter of the United States Code as Section 1252(a)(2)(B)(ii). As Judge Sullivan noted in Liu , “Section 1252(a)(2)(B)(i i) does not apply to all discretionary decisions,” but only to the “narrow[] category of decisions where Congress has taken the additional step to specify that the sole authority for the action is in the [Secretary’s]

discretion.” Liu , 509 F. Supp. 2d at 7 (citations omitted) . Here, Section 1252(a)(2)(B)(ii) is

(. . . continued) alien’s eligibility for . . . relief,” Sepulveda v. Gonzales , 407 F.3d 59, 62-63 (2d Cir. 2005), Section 1252(a)(2)(B)(ii) does not bar this Court from ordering the agency to reach a decision in regards to the plaintiff’s application. See also Pl.’s Opp’n at 3 (citing numerous circuit co urt cases for the proposition that Section 1252(a)(2)(B)(ii) does not strip federal courts of jurisdiction to review nondiscretionary decisions regarding an alien’s eligibility). This argument is without merit. The Court has found no authority, and the plaintiff cites none, that supports the proposition that the agency is procedurally compelled to issue a ruling on the adjustment of status application before determining whether a waiver is appropri ate. If anything, the regu lation applicable to asylees seeking adjustments to permanent resident status suggests that the USCIS may contemporaneously consider both the applicant’s eligibility for adjustment of status and the propriety of a waiver in determining whether to grant the adjustment of status application. Cf. 8 C.F.R. § 209.2 (“An application for [a] waiver may be filed . . . with the application for adjustment.”).9 located under Title 8, Chapter 12, S ubchapter II of the United States Code. Within Subchapter II

are Sections 1151 to 1381 of Title 8. As noted above, the provision that confers discretion on the Secretary of Homeland Security to determin e whether (and how) to issue a waiver of inadmissibility is found in S ection 1159(b), which, of cour se, falls under Subchapter II. 7 Orlov , 523 F. Supp. 2d at 34 (emphasis added). Thus, the C ourt is satisfied that the second element of the analysis—that the discretion be “specified under [the same] subchapter” as Section 1252(a)(2)(B)(ii)—is also satisfied. 8 The last step in the analysis is whether the exercise of this specified discretion constitutes an “action” under Section 1252(a)(2)(B )(ii). While this member of this Court agrees with Judge Sullivan that “the established body of administra tive law . . . distinguishes between” action and inaction, Liu , 509 F. Supp. 2d at 7, whether the Secretar y’s decision to hol d the plaintiff’s adjustment of status application in abeyance c onstitutes “inaction” that is reviewable by the Court is a closer question. At first blush, the pl aintiff’s argument that th e Secretary’s decision to hold his application in abeyance is “inaction” certainly has so me appeal, as the plaintiff’s application is currently in a state of limbo and has been in this status for several years. Furthermore, there is a r eal possibility that without judicial (or other) intervention, the plaintiff’s application could remain pending indefinitely. On the other hand, Judge Bates’s observation in

7 The fact that the Secretary did not rely on Section 1159(b) in issuing its Policy Memorandum does not impact the analysis of whether the Secretary’s determination to hold the plaintiff’s application in abeyance is reviewable. The only germane inquiry here is whether Congress specifically provided discretion under Subchapter II to allow the Secretary to determine when adjustment applications are to be adjudi cated by the agency, and not whether the Secretary actually exercised that author ity. In other words, the Secretary’s decision to rely on another source of authority for promulgating procedural rules does not change the fact that Congress has provided similar discretion under Section 1159(b).

8 In Liu , Judge Sullivan concluded that “[t]he subchapter . . . does not address, much less specify any discretion associated with, the pace of application processing.” Liu , 509 F. Supp. 2d at 7. However, Judge Sullivan makes no mention of Congress’s grant of authority under 8 U.S.C. § 1159(b) and 8 U.S.C. 1255(a) to the Secretary of Homeland Security and the Attorney General, respectively, to promulgate regulations in furtherance of their discretion to adjust the status of alien applicants seeking permanent resident status.10 Orlov that the word “action” as used in Section 1252( a)(2)(B)(ii) connotes “a series of acts” also has persuasive force. Orlov , 523 F. Supp. 2d at 35. For instance, one could argue here that the Secretary’s decision to hol d the plaintiff’s application in abey ance is a result of a series of affirmative acts: the Secretary’s decision to promulgate regulations setting forth the procedures for removing an adjustment of status applica tion from the general pool to a special pool for consideration by the Secretary, the Secretary’s removal (via the District Director) of the plaintiff’s application from the general pool to the select pool, and the act of conducting an investigation into whether a waiver of admissibility would be appropriate in the plaintiff’s case. Thus, it is difficult to peg this case squarely with in either the “action” or “inaction” categories, which is hardly surprising, given that the diffi culty in distinguishing between what constitutes “action” and “inaction” has been long acknow ledged by courts and academic commentators alike. See, e.g. , DeShaney v. Winnebago County Dep’t of Social Services , 489 U.S. 189, 212 (1989) (Blackmun, J., dissenting) (asserting that “a sharp and rigid line between action and

inaction” amounts to “formalistic reasoning [that] has no place in the interpretation of the broad and stirring [c]lauses of the Fourt eenth Amendment”); Bowers v. DeVito , 686 F.2d 616, 618 (7th Cir. 1982) (refusing to “pretend that the line betw een action and inaction . . . is clearer than it is”); Matthew D. Adler and Seth F. Kreimer, The New Etiquette of Federalism: New York, Printz, and Yeskey , 1998 S. Ct. Rev. 71, 92 (1998) (“What[] precisely[] makes some person’s (or some official’s) behavior an ‘action,’ as opposed to a mere failure to act, has been and remains a topic of considerable controversy in the philo sophical literature.”); Thomas A. Eaton and Michael Lewis Wells, Governmental Inaction as a Constitutional Tort: DeShaney and its

Aftermath , 66 Wa. L. Rev. 107, 109 n.9 (1991) (noting that “the distinction between acts and

omissions often turns on how one poses the question”).11 Although the difficulty in defi ning the term “action” unde r Section 1252(a)(2)(B)(ii) would seem to imply that judicial review of the plaintiff’s claim is required, see MCorp , 502 U.S. at 44, a closer examination re veals that as a practic al matter, the Court has no choice but to conclude that the Secretary’s de cision to hold the plaintiff’s app lication in abeyance constitutes “action,” rather than “inaction.” This is because a review of the Secretary’s decision to hold the plaintiff’s application in abeyance necessarily entails an indirect review of the Secretary’s discretionary authority. For example, the Cour t would have to assess whether the Secretary’s delay in processing the plaintiff’s application is unreasonable. See Telecommunications

Research & Action Center v. FCC , 750 F.2d 70, 80 (D.C. Cir. 1984) (recognizing six factors relevant to the determination whether agen cy delay is unreasonable). And, the Court’s assessment of reasonableness would surely require a review of what Congress designed to be a “careful, time-consuming process given the research needed by law enforcement and intelligence agencies and the various levels of scrutiny ne eded within the three Cabinet departments and

between the three Cabinet heads” to determine wh ether the nature of the agency’s investigation justifies the delay in processing the plaintiff’s application. Defs.’ Mem. at 15. But these

decisions as to whether and how to conduct an investigation into the plaintiff’s background, as discussed above, are undoubtedly within the discre tionary authority of th e Secretary that cannot be reviewed by this Court; thus a review of the Secretary’s de cision to hold the plaintiff’s application in abeyance is not merely a review of “inaction,” but rather a review of a series of discretionary acts that is plainl y barred by Section 1252(a)(2)(B)(ii). The Court, therefore, finds

that the third element under Section 1252(a)(2)(B)(ii) is also satisfied.12 IV. Conclusion Based on the foregoing analysis, the defendants’ motion to dismiss for lack of subjectmatter jurisdiction must be granted by the Court. With regards to the Attorney General, the plaintiff failed to allege any inju ry-in-fact that would give rise to standing under Article III. As for the remaining defendants, there is little doubt that the Court is precluded under Section 1252(a)(2)(B)(ii) from reviewing the Secretary’s decision to hold the plaintiff’s application in abeyance. Therefore, despite the “general pr esumption in favor of judicial review of administrative acts,” Liu , 509 F. Supp. 2d at 7, the Court concludes that it must dismiss the plaintiff’s Petition.

SO ORDERED this 11th day of May, 2010. 9

REGGIE B. WALTON United States District Judge

9 An order was issued on March 23, 2010 granting the defendants’ motion to dismiss and denying as moot its motion for summary judgment. An amended and final order w ill accompany the issu ance of this memorandum opinion (1) vacating the March 23, 2010 Order, (2) granting the defendants’ motion to dismiss, (3) denying as moot the defendants’ motion for summary judgment, and (4) closing this case.