Doe v. United States Citizenship and Immigration Services

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JOHN DOE and JANE DOE,

Plaintiffs,

No. 20 CV 7263

v.

Judge Manish S. Shah

UNITED STATES CITIZENSHIP AND

IMMIGRATION SERVICES, et al.,

Defendants.

ORDER

Defendants’ motion to dismiss [15] is granted. Plaintiffs have not exhausted

administrative remedies and due process does not require judicial review now

because their lawful status has not changed and process, including judicial review,

remains available. The complaint is dismissed without prejudice for failure to state a

claim based on failure to exhaust. Enter judgment and terminate civil case.

STATEMENT

The plaintiffs are Iraqi citizens and spouses and have permission to be in the

United States through nonimmigrant visas. [3] ¶¶ 1–3.* One of them applied for

asylum, withholding of removal, and protection under the Convention Against

Torture and requested derivative beneficiary status for the other. [3] ¶ 4. After they

received a notice of intent to deny the application, the plaintiffs continued to pursue

their claim, but the Director of the Chicago Asylum Office of U.S. Citizenship and

Immigration Services denied the application in a “final decision.” [3] ¶¶ 7–9. The

* Bracketed numbers refer to entries on the district court docket and referenced page

numbers are taken from the CM/ECF header placed at the top of filings. The plaintiffs

originally filed suit in the district court for the District of Columbia and that court granted

them permission to use the pseudonyms John and Jane Doe. [2]. The plaintiffs have

apparently waived this anonymity by attaching as public filings documents that reveal their

names. [19-1], [19-2], [19-3]. If the plaintiffs continue to litigate this case, either through post-

judgment motion or appeal, they must explain why they should be allowed to proceed

anonymously. See Doe v. Blue Cross & Blue Shield United of Wisconsin, 112 F.3d 869, 872

(7th Cir. 1997). Before they made their public filings, the plaintiffs alleged a reasonable fear

of violent reprisals against family if their identities were public. See [2] at 5–6. Their names

are not relevant here, so I omit them from this order.

denial did not change the plaintiffs’ lawful nonimmigrant status, revoke their visas,

or put them into removal proceedings. See [19] at 13; [20] at 2; 8 C.F.R.

§§ 208.14(c)(1)–(2), 1208.14(c)(1)–(2) (denial of asylum application of alien in valid

status results in denial, whereas denial of application of inadmissible or deportable

aliens results in referral to immigration judge for adjudication in removal

proceedings).

The plaintiffs filed this lawsuit to seek judicial review of the asylum denial.

They claim that the denial was arbitrary and capricious in violation of the

Administrative Procedure Act and violated due process. [3] at 5–6; 5 U.S.C.

§ 706(2)(A). The government moves to dismiss the complaint for failure to exhaust

administrative remedies. See 5 U.S.C. § 704. This court has subject-matter

jurisdiction under 28 U.S.C. § 1331 because the claims arise under the Constitution

and laws of the United States. See Dhakal v. Sessions, 895 F.3d 532, 538 (7th Cir.

2018) (general federal question jurisdiction exists over claim that immigration

officials improperly denied asylum application).

Judicial review under the Administrative Procedure Act is only available after

final agency action. Dhakal, 895 F.3d at 539. Here, the plaintiffs received a final

decision from the Director of the Chicago Asylum Office, and they argue that no more

agency process is available to them to dispute that decision. The plaintiffs sought

asylum before they were subject to removal. As a result, an immigration judge has no

jurisdiction to review their claim. 8 C.F.R. § 208.2(a)–(b). But that does not mean that

the Director’s decision is final under the APA. The executive branch still has an

opportunity to revisit the decision. If the government initiates removal proceedings

against them, the plaintiffs can present their arguments and evidence for asylum to

an immigration judge; they can appeal the immigration judge’s decision to the Board

of Immigration Appeals; they can try to reopen the proceedings and seek

reconsideration of adverse decisions. Dhakal, 895 F.3d at 537. Judicial review is

available in the court of appeals from the decision of the Board of Immigration

Appeals. Id.; 8 U.S.C. § 1252(a)(4)–(5). With this “intended, complete administrative

process” still available, “[t]he Director’s decision is more like a tentative

recommendation than a final and binding determination.” Dhakal, 895 F.3d at 540

(cleaned up). No legal consequences flow from the Director’s denial because the

plaintiffs remain in lawful status; they are subject to uncertainty and worry but they

have not yet been finally denied asylum. Id. They still have a chance to marshal

evidence and persuade the executive branch to grant them asylum. Id. at 540–541.

Although Dhakal dealt with an asylum applicant who had lawful status under

the Department of Homeland Security’s Temporary Protected Status program, and

the plaintiffs here have nonimmigrant status under J-1 and J-2 visas, the distinction

is immaterial. As in Dhakal, the Director denied plaintiffs’ asylum claim but did not

change their lawful nonimmigrant status. The status quo has not changed, and they

can still seek asylum through administrative process. Dhakal controls and the

plaintiffs have offered no argument otherwise (they don’t even cite Dhakal

notwithstanding the government’s reliance on it in its motion to dismiss). See also

Kashani v. Nelson, 793 F.2d 818, 827 (7th Cir. 1986) (asylum applicants may not seek

district court review of the Director’s denial but must renew the asylum petition in

removal proceedings).

The plaintiffs’ due-process claim fails for essentially the same reason. They

allege that they have no meaningful opportunity to challenge the Director’s denial of

their application, [3] { 36, but as discussed above, the opportunity exists as a matter

of law as a defense to removal. The Director’s action has not changed the plaintiffs’

status and they still have procedural avenues, including judicial review, to pursue

asylum. The Constitution does not require judicial intervention now. See Portillo-

Rendon v. Holder, 662 F.3d 815, 817 (7th Cir. 2011) (statutes and regulations provide

opportunities for relief in response to improper handling of immigration cases); see

also Noeller v. Wojdylo, 922 F.3d 797, 809 (7th Cir. 2019) (noting the available

opportunities to challenge the Board’s denials of asylum); see also Garcia v. Sessions,

873 F.3d 553, 556 (7th Cir. 2017) (asylum is discretionary and there is no due process

right to asylum).

The plaintiffs understandably would like to know whether they can have

asylum in the United States and don’t want to have to be put through the stress and

challenges of removal proceedings to find out. But neither the Administrative

Procedure Act nor the Constitution entitles them to a judicial hearing now. The

complaint is dismissed without prejudice.

ENTER: j C =. C {

Manish S. Shah

United States District Judge

Date: April 12, 2021