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Hosseini v. Napolitano

United States District Court, E.D. Kentucky, Central Division

April 3, 2014

MEHRDAD HOSSEINI, Plaintiff,
v.
JANET NAPOLITANO, et al., Defendants

Page 1028

Mehrdad Hosseini, Plaintiff, Pro se, Lexington, KY.

For Alejandro Ma Yorkas, Director, U.S. Dept. of Homeland Security, U.S. Citizenship and Immigration Services, Mark J. Hazuda, Director of Nebraska Service Center, U.S. Dept. of Homeland Security, U.S. Citizenship and Immigration Services, Rand Beers, Acting Secretary, Official Defendants: Anna R. Gwinn, LEAD ATTORNEY, U.S. Attorney's Office, EDKY, Lexington, KY; J. Max Weintraub, U.S. Department of Justice - Immigration, Office of Immigration Litigation, Washington, DC.

OPINION

Page 1029

MEMORANDUM OPINION AND ORDER

Joseph M. Hood, Senior United States District Judge.

This matter is before the Court on the motion of the defendants, Acting Secretary of the Department of Homeland Security (" DHS" ) Rand Beers, Director of United States Citizenship and Immigration Services (" USCIS" ) Alejandro Mayorkas, and Director of the USCIS Nebraska Service Center Mark J. Hazuda, to dismiss the complaint, or in the alternative for summary judgment [R. 14], as well as plaintiff Mehrdad Hosseini's cross-motion for summary judgment. [R. 21] Both parties have filed responses in opposition. [R. 20, 22] These matters are therefore ripe for decision.

I

Mehrdad Hosseini is a resident of Lexington, Kentucky. Proceeding without counsel, on March 26, 2013, Hosseini filed a complaint seeking declaratory and injunctive relief compelling the defendants to adjudicate the Form I-485 Application to Register Permanent Residence or Adjust Status he filed on April 19, 2001. [R. 1] In his complaint, Hosseini contends that the 12-year delay in deciding his application is unreasonable. Specifically, he indicates that the Administrative Procedure Act, 5 U.S.C. § 551 et seq., requires federal agencies to decide matters before them within a reasonable time, 5 U.S.C. § 555(b), and allows a court to " compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1). [R. 1, p. 1] He further contends that pertinent provisions of the Immigration and Nationality Act provide that I-485 applications " should be completed no later than 180 days after the initial filing of the application," 8 U.S.C. § 1571(b), and seeks mandamus relief under 28 U.S.C. § 1361 to compel USCIS to decide his application.

In their motion, the defendants indicate that Hosseini is a native and citizen of Iran. On May 6, 1999, Hosseini's wife Nasrin Abdolrahmani was granted asylum in the United States. Abdolrahmani filed an I-730 petition seeking asylum on Hosseini's behalf as her spouse. USCIS approved

Page 1030

that application, and on February 5, 2000, Hosseini was admitted as a derivative asylee. [R. 14-1, Canaan Decl. at ¶ 3]

An asylee who has been physically present in the United States for at least one year and is otherwise admissible is eligible for permanent resident status. 8 U.S.C. § 1159(b). On April 19, 2001, Hosseini filed an I-485 application seeking adjustment of his status to that of a lawful permanent resident. The USCIS Nebraska Service Center made an initial request for evidence on July 14, 2005, and a second request on December 3, 2007. Hosseini's application has remained pending since his February 22, 2008, response. Id. at ¶ 5.

If an applicant's status is adjusted to that of lawful permanent resident, they are issued a " green card." Id. However, an asylee may not be issued a green card if they face a statutory bar to adjustment of status under 8 U.S.C. § 1182. The defendants indicate that their failure to decide Hosseini's application is not due to general administrative delay, but because he faces such a statutory bar to adjustment. Id. at ¶ 11.

Specifically, Hosseini's file indicates that while he was a teenager living in Iran, he distributed literature provided by Mojahedin-e-Khalq (the " MEK" ) and the Fadaian-e-Khalq (the " FEK" ). Before the Shah was deposed in Iran's 1979 revolution, MEK members killed United States soldiers and American civilian defense contractors. After the revolution, MEK's Islamist and Marxist ideology conflicted with that of the Ayatollah Khomeini's government, and a series of bombings, mortar attacks and assassinations directed against the Khomeini regime are attributed to the group. For its part, FEK operated a training camp and guerilla base in Tehran University and " engaged in small scale, insurgent-style attacks in urban settings" against the regime. In her I-730 petition, Abdolrahmani stated that she insisted that Hosseini terminate his involvement with these organizations in 1984 as a precondition to their marriage. Id. at ¶ ¶ 12-15.

USCIS has concluded that MEK and FEK engaged in " terrorist activity" within the meaning of 8 U.S.C. § 1182(a)(3)(B)(iii)(V)(b) by " [using] any ... explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property." Accordingly, it has determined that MEK and FEK constitute undesignated (or " Tier III" ) terrorist organizations pursuant to 8 U.S.C. § 1182(a)(3)(B)(vi)(III). Id. at ¶ 16. USCIS has further concluded that Hosseini " engage[d] in terrorist activity" within the meaning of 8 U.S.C. § 1182(a)(3)(B)(iv) because his distribution of literature constituted " afford[ing] material support" to a terrorist organization under subsection (VI) of that section, thus rendering him inadmissible pursuant to 8 U.S.C. § 1182(a)(3)(B)(i)(I). Id. at ¶ 17.[1]

Page 1031

Nonetheless, the defendants indicate that rather than simply denying Hosseini's application outright because he is inadmissible, pursuant to agency policy USCIS has placed his application, and many others by applicants similarly situated, on adjudicatory hold. [R. 14-1, Canaan Decl. at ¶ ¶ 21-23] The purpose for doing so is to permit the DHS Secretary to exercise his discretionary authority under 8 U.S.C. § 1182(d)(3)(B)(i), created as a result of congressional amendments in December 2007, to exempt organizations from ...


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