United States District Court, E.D. Missouri, Eastern Division
EMAD N. HAROUN, Plaintiff,
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants U.S. Department of
Homeland Security; U.S. Citizenship Immigration Services
(“USCIS”); Jeh Johnson, Secretary of Homeland
Security; Leon Rodriguez, Director of USCIS; and Chester
Moyer, Director of the St. Louis Field Office for USCIS's
Motion to Dismiss (Doc. 6). The matter is fully briefed and
ready for disposition. For the reasons set forth below,
Defendants' motion will be granted.
Emad Haroun is a citizen of Jordan who became a lawful
permanent resident of the United States on December 31, 2008.
(Complaint (“Compl.”) at ¶¶ 3, 22).
Since that time, Haroun has filed three N-400 Applications
for Naturalization, two of which were denied. This matter
arises out of Haroun's third application, filed on
September 11, 2014. (Id. at ¶ 6). Haroun paid
the filing fee, underwent biometrics and a background check,
appeared for an interview, passed his civics and English
exams, and provided additional documentation requested by
USCIS. (Id. at ¶¶ 6-7). However, Haroun
alleges USCIS refused to adjudicate Haroun's application,
instead applying more stringent rules under a policy known as
the Controlled Application Review and Resolution Program
(“CARRP”). (Id. at ¶ 8). Haroun
made repeated requests to USCIS to have his case decided and
finally brought the instant action to compel USCIS to
adjudicate his pending application for naturalization.
(Id. at ¶¶ 10). According to Haroun, his
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.
(Id. at ¶¶ 13-14).
become a United States citizen through naturalization, an
applicant must satisfy certain eligibility criteria under the
INA. For instance, applicants must show that after being
lawfully admitted to the United States, they have resided
continuously in the United States for a period of five years
and demonstrated good moral character. 8 U.S.C. § 1427.
If an applicant satisfies the statutory requirements for
naturalization, USCIS “shall grant the
application.” 8 C.F.R. § 335.3(a). If USCIS's
final decision is to deny naturalization, the applicant may
seek de novo review of the denial in the United
States district court with jurisdiction over the
applicant's place of residence. 8 U.S.C. § 1421(c).
In such a proceeding, “the court shall make its own
findings of fact and conclusions of law and shall, at the
request of the petitioner, conduct a hearing de novo on the
alleges that in April 2008, USCIS created CARRP, an
agency-wide policy for identifying, processing, and
adjudicating immigration applications that raise
“national security concerns.” (Compl. at ¶
42). He 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.
(Id. at ¶ 48).
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. (Id. at ¶ 71). The first stage,
“deconfliction, ” requires USCIS to coordinate
with a law enforcement agency regarding questions to ask in
interviews and issue requests for evidence. (Id. at
¶¶ 72-74). Haroun alleges USCIS often makes
decisions to deny immigration applications because the
Federal Bureau of Investigations requests or recommends the
denial, not because the person was statutorily ineligible for
the benefit. (Id. at ¶ 75). This allows law
enforcement and intelligence agencies to directly affect the
adjudication of a requested immigration benefit.
(Id. at ¶ 74).
CARRP directs officers to perform an eligibility assessment
to determine “any possible reason to deny an
application” to avoid valuable time and resources being
unnecessarily expended on further investigation of the
“national security concern.” (Id. at
¶ 77). 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,
Haroun 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, interviews, site visits, etc.
(Id. at ¶ 78). Then, officers are instructed to
again conduct “deconfliction” to determine the
position of any interested law enforcement agency.
(Id. at ¶ 79). If the “national security
concern” remains and the officer cannot find a basis to
deny the benefit, Haroun claims the application proceeds to
“external vetting, ” during which time USCIS
officers and law enforcement agents confirm the existence of
the “national security concern.” (Id. at
¶¶ 80, 82). 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.” (Id. at
¶ 82). The Field Office Director may extend the abeyance
periods so long as the investigation remains open, and Haroun
alleges that CARRP provides no outer limit on how long USCIS
may hold a case in abeyance, despite the statutory
requirement under INA that USCIS adjudicate a naturalization
application within 120 days of examination. (Id. at
¶¶ 82, 83).
essence, Haroun'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. (Id. at ¶ 87). Haroun 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. at ¶ 87). Haroun claims
CARRP effectively creates two substantive regimes for
immigration application and processing: one for those
applicants subject to CARRP and one for all other applicants.
(Id. at ¶ 88). He claims CARRP results in
extraordinary processing and adjudication delays, often
lasting many years, and baseless denials of
statutorily-eligible immigration applications. (Id.
at ¶ 90).
filed his Complaint in the Nature of Mandamus Arising from
Defendants' Refusal to Adjudicate Plaintiff's
Application for Naturalization on September 23, 2016. He
requests (1) a declaration that CARRP violates the INA; (2) a
declaration that Defendants violated the Administrative
Procedure Act (“APA”), 5 U.S.C. § 1001,
et seq. by adopting CARRP without promulgating a
rule and following the process for notice and comment; (3) an
injunction prohibiting Defendants from applying CARRP to the
processing and adjudication of Haroun's pending
immigration benefit application; (4) an order requiring
Defendants to rescind CARRP for failure to follow the notice
and comment requirements under the APA; and (5) an order
requiring Defendants to adjudicate his case immediately or
remand the case to Defendants with an order to do so within a
September 26, 2016, the Court issued summonses for all
Defendants. On September 28, 2016, USCIS completed its
adjudication of Haroun's N-400 application, and it was
denied. (Doc. 7-1). The basis for the denial was Haroun's
lack of good moral character due to the “commission of
unlawful acts both during and prior to the statutory [five
year] good moral character period. (Id. at 3). On
September 30, 2016, Haroun served the summons on the United
States Attorney's Office for the Eastern District of
Missouri under Federal Rule of Civil Procedure 4(i). (Doc.
survive a motion to dismiss brought pursuant to Federal Rule
of Civil Procedure 12(b)(6), a claim “must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face, '
” meaning that it must contain “factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). The reviewing court must accept the plaintiff's
factual allegations as true and construe them in
plaintiff's favor, but it is not required to accept the
legal conclusions the plaintiff draws from the facts alleged.
Id. at 678; Retro Television Network, Inc. v.
Luken Commc'ns, LLC, 696 F.3d 766, 768-69 (8th Cir.