United States District Court, D. Arizona
EILEEN S. WILLETT UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Defendants’ Motion for Summary Judgment (Doc. 24) on Plaintiff’s claim for a writ of mandamus. The Federal Court has jurisdiction pursuant to 28 U.S.C. § 1331. The parties have consented to proceeding before a Magistrate Judge pursuant to Rule 73, Fed.R.Civ.P. and 28 U.S.C. § 636 (c) (Doc. 15).
After reviewing the parties’ submissions, the Court finds that genuine issues of material fact exist concerning the reasonableness of Defendants’ delay in the adjudication of Plaintiff’s application for adjustment of his citizenship status. Defendant is not entitled to summary judgment as a matter of law. Defendants’ Motion for Summary Judgment will be denied for the reasons set forth herein.
I. PROCEDURAL HISTORY
Plaintiff is a citizen of Iran who was admitted to the United States as a refugee on December 12, 2005. On January 22, 2007, Plaintiff filed a Form I-485 with U.S. Customs and Immigration Services (“USCIS”), seeking adjustment of his citizenship status to permanent resident pursuant to 8 U.S.C. § 1159(a)(1). Plaintiff’s adjustment application remains pending due to a hold placed upon it by Defendants pursuant to USCIS policy which allows the government to hold for future exemption consideration the applications of individuals who are otherwise inadmissible for having engaged in terrorist activity. 8 U.S.C. § 1182 (a)(3)(B)(i)(I). On January 5, 2015, Plaintiff filed a “Complaint for Writ in the Nature of Mandamus Verified Complaint for a Writ in the Nature of Mandamus” (Doc.1). Plaintiff alleges that Defendants have unreasonably delayed the processing of his adjustment application and requests that the Court require federal agents to process to a conclusion Plaintiff’s application for adjustment of status to permanent resident. Defendants filed an Answer (Doc. 16). All issues are joined.
Until July 7, 1995 and while Plaintiff lived in Iran, Plaintiff distributed fliers and pamphlets critical of the Iranian government. As part of his refugee application in a translated sworn statement dated August 22, 2001, Plaintiff describes his “political activities” in Iran as receiving and distributing pamphlets, newspapers, and articles with his friend Farhad Zandi and Mehran Bor. (Doc. 29 at 25-27). The literature distributed by Plaintiff was critical of the Iranian government. Mehran Bor was Plaintiff’s “connection to other member (sic) of the MOJAHEDIN party.” (Id. at 26). Because Mehran Bor “had given the name of memebers (sic) of the Mojahedin party to the secret police, ” Plaintiff went into hiding. (Id.). He thereafter fled Iran with a false passport. Plaintiff immigrated to Germany, converted to Christianity, and sought refugee status in the United States.
In Plaintiff’s interview dated August 22, 2001 with Immigration and Naturalization Services (“INS”) Officer Scott Miller, Officer Miller noted that Plaintiff was active in the distribution of fliers or pamphlets “given by the Majahadeen (sic).” (Id. at 42). Officer Miller found Plaintiff’s testimony to be credible and found Plaintiff to be a refugee as defined by law. Plaintiff was granted refugee status and admitted to the United States in 2005.
Two years after immigrating to the United States as a refugee, Plaintiff sought adjustment of his citizenship status to that of a permanent resident by filing the appropriate application, Form I-485. Plaintiff submitted all information required by the application. Pursuant to 8 C.F.R. § 209.2, USCIS has completed its review process, including (i) a Federal Bureau of Investigation (“FBI”) fingerprint check, (ii) a check against the DHS-managed Interagency Border Inspection System (“IBIS”), and (iii) an FBI name check. At some date undisclosed to the Court, USCIS placed a hold on Plaintiff’s adjustment application due to the information contained in Plaintiff’s refugee application regarding Plaintiff’s distribution of literature critical of the Khomeini regime which Plaintiff received from the Mujahidin-e Khalq Organization (“MEK”). On the basis of the information contained in Plaintiff’s refugee application, USCIS found that Plaintiff engaged in activity which materially supported the MEK.
Until 2012 when the U.S. State Department removed the MEK from its list of Foreign Terrorist Organizations and while Plaintiff distributed fliers in Iran, the United States considered the MEK to be a terrorist organization as defined by 8 U.S.C. § 1189. Though the MEK was not officially designated as a foreign terrorist organization until October 8, 1997, the MEK’s activities prior to its designation qualified the MEK to be an undesignated, or Tier III, terrorist organization. Defendants assert that by distributing pamphlets for the MEK, Plaintiff provided material support to a terrorist organization. Because Defendants have concluded from a review of Plaintiff’s refugee application that Plaintiff provided material support to a terrorist organization, Defendants placed a hold on Plaintiff’s application for adjustment of status to permanent resident pursuant to internal policy.
The hold on Plaintiff’s application for adjustment of citizenship status is indefinite. By placing a hold on Plaintiff’s application, DHS can consider Plaintiff for future discretionary exemptions to terrorist-related inadmissibility grounds. Were Defendants to adjudicate Plaintiff’s application at this time, Defendants state that Plaintiff’s application likely would be denied on the basis of inadmissibility for terrorist activity. Therefore, Defendants argue that the hold is benign and may inure to Plaintiff’s benefit at some indeterminate time in the future. There are currently approximately 2, 800 pending I-485 adjustment of citizenship status applications involving Tier III terrorist organizations placed on hold for determination of exemption eligibility. Whether DHS will exercise its authority to exempt Plaintiff from terrorist inadmissibility grounds is discretionary with DHS. The USCIS has not yet determined whether MEK meets the qualifications of the exemption or whether Plaintiff will be eligible for consideration under this exercise of the exemption authority. Defendants have provided no timeline within which these determinations will be made.
In Plaintiff’s affidavit dated August 4, 2015, Plaintiff contests the accuracy of his translated sworn statement contained in his refugee application. Plaintiff denies knowing that the literature critical of the Khomeini regime which Plaintiff distributed in Iran was from or for the MEK. Plaintiff denies having been a member or supporter of the MEK. He denies knowing the political affiliation of Mehran Bor, and he denies that his friends were members of the MEK. Finally, Plaintiff denies any intent to support a terrorist organization, terrorist activity, or violence. Therefore, Plaintiff does not believe that his application should be denied, and he seeks final adjudication of it.
III. LEGAL STANDARDS