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Haroun v. United States Department of Homeland Security

United States District Court, E.D. Missouri, Eastern Division

July 26, 2017

EMAD N. HAROUN, Plaintiff,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

          MEMORANDUM AND ORDER

          JOHN A. ROSS UNITED STATES DISTRICT JUDGE

         This 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.

         BACKGROUND

         Plaintiff 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.[1] 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).

         a. CARRP

         To 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 application.” Id.

         Haroun 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).

         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. (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).

         Next, 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).

         In 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).

         b. Procedural History

         Haroun 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 time certain.

         On 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).[2] 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. 7-2).

         LEGAL STANDARD

         To 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. 2012). ...


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