Geneme v. Holder

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SHASHI GENEME,

Plaintiff,

v. Civil Action 10-757 (RC)

ERIC H. HOLDER, JR., et al.,

Defendants.

MEMORANDUM OPINION

An Ethiopian citizen, Shashi Geneme was granted asylum in 2002. She applied to adjust

her status to that of a lawful permanent resident—that is, a green card holder—in 2005. Pursuant

to a national policy, U.S. Citizenship and Immigration Services (“USCIS” or “the agency”), an

agency within the Department of Homeland Security, has placed her application on hold. In this

suit, Ms. Geneme seeks an order that USCIS adjudicate her application. The agency has moved

to dismiss her complaint for lack of subject matter jurisdiction and, in the alternative, for

summary judgment.

I. BACKGROUND

Shashi Geneme was born in Addis Ababa, Ethiopia. Compl. ¶ 13. In 2002, she came to

the United States on a B-2 visa and applied for asylum, which she received that same year. Id.

On her asylum application, Ms. Geneme indicated that she had financially supported the Oromo

Liberation Front, an armed group that advocates for the creation of a separate state for ethnic

Oromos. Decl. of Naboone J. Puripongs Jaeger, May 25, 2012, at ¶¶ 11–12. According to

published reports, the Front has used guerilla tactics against Ethiopian government troops and

detonated bombs that have killed and injured civilians. Id. ¶ 11.

In 2005, Ms. Geneme submitted an I-485 application for permanent residence. Compl.

¶ 13. In 2006, Ms. Geneme submitted fingerprints and other information that USCIS needed to

process her application. Id. ¶¶ 17–18. A long silence followed. In 2008, she began to contact

USCIS about the delay in processing her application. Id. ¶ 19. Two letters in early 2009

informed her that USCIS was “actively processing this case.” Compl., Ex. H (Letter from

USCIS, Jan. 20, 2009); id., Ex. I (Letter from USCIS, Apr. 28, 2009). In December of that year

she received another letter, which stated that:

Your case is on hold because you appear to be inadmissible under [§] 212(a)(3)(B)

of the [Immigration and Nationality Act], and USCIS currently has no authority not

to apply the inadmissibility ground(s) to which you appear to be subject. Rather than

denying your application based on inadmissibility, we are holding adjudication in

abeyance while the Department of Homeland Security considers additional exercises

of the Secretary of Homeland Security[’]s discretionary exemption authority. Such

an exercise of the exemption authority might allow us to approve your case.

Id., Ex. K (Letter from USCIS, Dec. 11, 2009). Six months later, Ms. Geneme filed this suit.

The statutory provision which the letter cited makes aliens who have provided material

support to a terrorist organization inadmissible as a general matter. As amended by the REAL

ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302, the Immigration and Nationality Act (“INA”)

establishes three categories of terrorist organization: two formally designated by the Secretary of

State, 8 U.S.C. § 1182(a)(3)(B)(vi)(I)–(II), and a third that, although not formally designated,

nonetheless “engages in, or has a subgroup which engages in” terrorist activities, id.

§ 1182(a)(3)(B)(vi)(III). Groups in this third category are known as “Tier III” or “undesignated”

terrorist organizations. In the Consolidated Appropriations Act of 2008 (“CAA”), Pub. L. No.

110-161, 121 Stat. 1844, 2364–65, Congress gave both the Secretary of State and the Secretary

of Homeland Security the authority to, “after consultation with the Attorney General” and each

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other, “determine in such Secretary’s sole unreviewable discretion . . . that subsection

(a)(3)(B)(vi)(III) of this section shall not apply to a group within the scope of that subsection.” 8

U.S.C. § 1182(d)(3)(B)(i). By doing so, either Secretary can remove the bar on admissibility for

aliens who have supported that group.

In March 2008, the deputy director of USCIS issued a memorandum in response to that

grant of statutory authority. The memo stated that:

The Secretary [of Homeland Security] has not exercised his discretionary authority

since passage of the CAA, and the Department of Homeland Security (DHS)

currently is considering several groups and categories of cases as possible candidates

for additional terrorist-related inadmissibility provision exemptions. Because new

exemptions may be issued by the Secretary in the future, until further notice

adjudicators are to withhold adjudication of cases in which the only ground(s) for

referral or denial is a terrorist-related inadmissibility provision(s) and the applicant

falls within one or more of the below categories:

....

2. Applicants who are inadmissible under the terrorist-related provisions of the INA

based on any activity or association that was not under duress relating to any . . . Tier

III organization [other than those organizations specifically named by the CAA]. .

..

....

Adjudicators may also raise through their local chain of command to appropriate

Headquarters personnel any case which presents compelling circumstances that

warrant consideration of a new or individualized exemption that would not otherwise

be covered by the above hold instructions.

....

Adjudicators will receive additional guidance on continued or lifted holds on these

cases as decisions are reached at the DHS level.

Compl., Ex. O (Memo. of Mar. 26, 2008), at 2–3. In early 2009, USCIS put out additional

guidance but did not lift the adjudication hold on cases such as Ms. Geneme’s. Instead, the

agency renewed the requirement that cases involving “[a]pplicants who are inadmissible under

the terrorist-related provisions of the INA based on any activity or association that was not under

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duress relating to any Tier III organization, other than those for which an exemption currently

exists,” be placed on hold. Compl., Ex. N (Memo. of Feb. 13, 2009), at 2. An applicant could,

however, request that the hold be lifted in her case. “If the adjudicating office receives a request

from the beneficiary and/or attorney of record to adjudicate a case on hold per this policy

(including the filing of a mandamus action in federal court) . . . the case should be elevated

through the chain of command to appropriate Headquarters personnel. Guidance will be

provided by USCIS headquarters on whether or not the case should be adjudicated.” Id. at 3.

This suit constitutes such a request, but Ms. Geneme has received no indication of when her case

will be adjudicated by USCIS.

In August 2012, while the instant motion was pending, the Secretary of the Department

of Homeland Security exercised her discretionary authority under 8 U.S.C. § 1182(d)(3)(B)(i).

The Secretary established a multi-factor test to determine whether to exempt from

inadmissibility an alien who has provided material support to a Tier III terrorist organization.

See Exercise of Authority Under the Immigration and Nationality Act, 77 Fed. Reg. 49,821

(Aug. 17, 2012). One element of that test evaluates the terrorist group, denying an exemption if

it has ever “targeted U.S. interests or persons” or “engaged in a pattern or practice of torture, . . .

genocide, . . . or the use of child soldiers.” Id. at 49,821. USCIS is currently consulting with the

Department of Homeland Security to determine whether supporters of the Oromo Liberation

Front will qualify for exemption from inadmissibility under the Secretary’s criteria. The agency

has no estimate as to when it will complete its determination. Decl. of Naboone J. Puripongs

Jaeger, Jan. 17, 2013, at ¶¶ 3–6. Ms. Geneme’s application remains on hold.

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II. LEGAL STANDARD

A. Jurisdiction

This is a court of limited jurisdiction, possessing “only that power authorized by

Constitution and statute.” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). The

plaintiff bears the burden of establishing the court’s jurisdiction. Shuler v. United States, 531

F.3d 930, 932 (D.C. Cir. 2008); Moms Against Mercury v. FDA, 483 F.3d 824, 828 (D.C. Cir.

2007). In evaluating the defendants’ motion to dismiss the complaint for lack of jurisdiction

under Federal Rule of Civil Procedure 12(b)(1), the court must take the plaintiff’s factual

allegations as true. See El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 839 (D.C.

Cir. 2010) (en banc). It may, “when necessary . . . look beyond the complaint to ‘undisputed

facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s

resolution of disputed facts.’” Mowat v. U.S. Parole Comm’n, 815 F. Supp. 2d 199, 204 (D.D.C.

2011) (quoting Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)).

B. Substantive Standard

When a plaintiff seeks a writ of mandamus under the All Writs Act, 28 U.S.C. § 1651(a),

to “compel agency action unlawfully withheld or unreasonably delayed,” 5 U.S.C. § 706(1), the

court “starts from the premise that issuance of the writ is an extraordinary remedy, reserved only

for the most transparent violations of a clear duty to act.” In re Bluewater Network, 234 F.3d

1305, 1315 (D.C. Cir. 2000). “The central question in evaluating ‘a claim of unreasonable

delay’ is ‘whether the agency’s delay is so egregious as to warrant mandamus.’” In re Core

Commc’ns, Inc., 531 F.3d 849, 855 (D.C. Cir. 2008) (quoting Telecomms. Research & Action

Ctr. v. FCC (“TRAC”), 750 F.2d 70, 79 (D.C. Cir. 1984)).

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III. ANALYSIS

A. Jurisdiction

“[I]n cases brought under APA § 706(1) seeking to ‘compel agency action unlawfully

withheld or unreasonably delayed,’ 5 U.S.C. § 706(1), when the agency has failed to act within a

‘reasonable time,’ id. § 555(b), jurisdiction lies in the district court.” In re Natural Resources

Def. Council, 645 F.3d 400, 406 (D.C. Cir. 2011). But in a section captioned “Matters not

subject to judicial review” and a subsection headed “Denials of discretionary relief,” the

Immigration and Nationality Act provides that:

Notwithstanding any other provision of law (statutory or nonstatutory), including

section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and

1651 of such title, and except as provided in subparagraph (D),[1] and regardless of

whether the judgment, decision, or action is made in removal proceedings, no court

shall have jurisdiction to review—

(i) any judgment regarding the granting of relief under section 1182(h), 1182(i),

1229b, 1229c, or 1255 of this title,[2] or

1

“Subparagraph (D) of § 1252(a)(2), enacted in 2005, REAL ID Act of 2005 (REAL ID

Act), § 106(a), 119 Stat. 310, adds:

Nothing in subparagraph (B) . . . or in any other provision of this Act (other than this

section) which limits or eliminates judicial review, shall be construed as precluding

review of constitutional claims or questions of law raised upon a petition for review

filed with an appropriate court of appeals in accordance with this section.

The addition of 8 U.S.C. § 1252(a)(2)(D) in 2005 did not change the operative language of

§ 1252(a)(2)(B)(ii) as enacted in 1996.

The REAL ID Act amendments also inserted into this introductory clause, inter alia, the

words ‘(statutory or nonstatutory).’ § 106(a)(1)(A)(ii), 119 Stat. 310. The introductory clause,

however, does not define the scope of 8 U.S.C. § 1252(a)(2)(B)(ii)’s jurisdictional bar. It simply

informs that once the scope of the bar is determined, jurisdiction is precluded regardless of what

any other provision or source of law might say.” Kucana v. Holder, 130 S. Ct. 827, 831 n.1

(2010).

2

“Sections 1182(h) and 1182(i) address waivers of inadmissibility based on certain

criminal offenses, and fraud or misrepresentation, respectively; § 1229b addresses cancellation

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(ii) any other decision or action of the Attorney General or the Secretary of

Homeland Security the authority for which is specified under this subchapter[3] to be

in the discretion of the Attorney General or the Secretary of Homeland Security,

other than the granting of relief under section 1158(a) of this title.[4]

8 U.S.C. § 1252(a)(2)(B). If the decision by USCIS to place a hold on Ms. Geneme’s

application for adjustment of status was, as the defendants argue, a “decision or action of the

Attorney General or the Secretary of Homeland Security the authority for which is specified

under” Title 8, Chapter 12, Subchapter II “to be in the discretion of the Attorney General or the

Secretary of Homeland Security,” then this court must dismiss the case for lack of jurisdiction.5

Many district courts—but, as yet, no courts of appeals—have addressed that question,

identifying two major elements of the inquiry. First, has USCIS made a decision or taken an

action? That question presents itself with greatest force in cases where applicants challenge

unexplained delays in adjudication. In that context, some courts have found that “‘action’ in

§ 1252(a)(2)(B)(ii) encompasses the entire process of reviewing an adjustment application,

including . . . the pace at which the process proceeds,” Safadi v. Howard, 466 F. Supp. 2d 696,

699 (E.D. Va. 2006); accord Orlov v. Howard, 523 F. Supp. 2d 30, 36 (D.D.C. 2007); Luo v.

of removal; § 1229c, voluntary departure; and § 1255, adjustment of status.” Kucana, 130 S. Ct.

at 832 n.2.

3

“‘[T]his subchapter’ refers to Title 8, Chapter 12, Subchapter II, of the United States

Code, codified at 8 U.S.C. §§ 1151–1381 and titled ‘Immigration.’” Kucana, 130 S. Ct. at 832

n.3 (alteration in original).

4

“The exception for relief under § 1158(a) refers to administrative decisions whether to

grant asylum.” Kucana, 130 S. Ct. at 832 n.4.

5

USCIS exercises the discretionary authority to adust the status of aliens who have been

granted asylum, which was originally conferred on the Secretary and Attorney General. See 8

U.S.C. § 1159(b) (grant of authority to adjust status); 6 U.S.C. §§ 271(b), 557 (transfer of

authority to USCIS).

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Keisler, 521 F. Supp. 2d 72, 74 (D.D.C. 2007), while others have ruled that “by the use of the

terms ‘decision or action,’ § 1252(a)(2)(B)(ii) only bars review of actual discretionary decisions,

not the failure to render a decision,” Liu v. Novak, 509 F. Supp. 2d 1, 6 (D.D.C. 2007). Both

Safadi and Liu—as well as Orlov and Luo—concerned applications for adjustment of status that

were under active (though deliberate) consideration at the time of the suit. Ms. Geneme’s

application, by contrast, has been formally placed on hold. There is no question that USCIS has

made a decision with regard to that application: it has decided not to adjudicate the application at

this time. This court’s “review of the . . . decision to hold the plaintiff’s application in abeyance”

would therefore not be “merely a review of ‘inaction’” as some courts have held in the case of

unexplained delays. Singh v. Napolitano, 710 F. Supp. 2d 123, 132 (D.D.C. 2010); accord Seydi

v. USCIS, 779 F. Supp. 2d 714, 719–20 (E.D. Mich. 2011) (noting that USCIS had not “simply

permitt[ed] Plaintiff’s application to languish without consideration or action” by putting it on

hold).

The more difficult question is whether “the authority for” that decision “is specified

under this subchapter to be in the discretion of the Attorney General or the Secretary of

Homeland Security” that has been transferred to USCIS. 8 U.S.C. § 1252(a)(2)(B)(ii). District

court judges have disagreed. On the one hand, the ultimate decision whether to adjust the status

of an alien who has been granted aslyum is certainly made discretionary by the relevant

subchapter. See 8 U.S.C. § 1159(b) (“The Secretary of Homeland Security or the Attorney

General, in the Secretary’s or the Attorney General’s discretion and under such regulations as the

Secretary or the Attorney General may prescribe, may adjust to the status of an alien lawfully

admitted for permanent residence the status of any alien granted asylum who” meets certain

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statutory requirements.); Beshir v. Holder, 853 F. Supp. 2d 1, 8 (D.D.C. 2011) (agreeing that

“the Secretary clearly has discretionary authority to adjudicate the plaintiff’s adjustment of

status, see 8 U.S.C. § 1159(b)”). And some courts found themselves to be stripped of

jurisdiction to review the status of unadjudicated adjustment applications. Those courts have

grounded their rulings in USCIS’s explicit discretion to make decisions about the adjustment of

an alien’s status and its authority to prescribe regulations governing the consideration of such

applications, concluding that those statutory grants of discretion and authority also encompass

the discretion to control the procedures under which applications are considered. See Seydi, 779

F. Supp. 2d at 718 (endorsing Singh’s ruling “that the decision to hold an application in abeyance

was encompassed within the Secretary’s discretionary power ‘to promote regulations that she

feels are necessary to exercise her authority to grant permanent resident status to an asylee’”

(quoting Singh, 710 F. Supp. 2d at 129)); Orlov, 523 F. Supp. 2d at 35 (“In the absence of

statutorily prescribed time limitations or statutory factors to guide USCIS in crafting regulations

for the adjustment process, it is difficult to determine how the pace of processing an application

could be anything other than discretionary.”); Luo, 521 F. Supp. 2d at 74 (endorsing Safadi’s

ruling “that the absence of statutory time limits imposed by Congress suggests that Congress

intended to include the pace of the process as part of its broad grant of discretion to the Attorney

General in such matters”).

Courts reaching the contrary conclusion distinguish between the agency’s discretion

regarding the substance of an adjustment decision and its authority to make—or not to

make—that decision in the first place. As one court has written, “[t]he Court does indeed lack

jurisdiction to review a denial of discretionary relief. But failing to make a decision—any

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decision—is not the same as deciding to deny relief.” Al Jabari v. Chertoff, 536 F. Supp. 2d

1029, 1036 (D. Minn. 2008). Two judges in this district have found that “the . . . discretionary

authority to withhold adjustment applications is not ‘specified under this subchapter,’” and

therefore ruled that jurisdiction over claims that adjudication has been unreasonably delayed are

“not barred by the INA’s jurisdiction-stripping provision.” Beshir, 853 F. Supp. 2d at 9; Liu,

509 F. Supp. 2d at 7 (Ҥ 1252(a)(2)(B)(ii) does not apply to all discretionary decisions, but only

those decisions ‘the authority for which is specified under this subchapter to be in the discretion

of the Attorney General or the Secretary of Homeland Security.’ . . . The subchapter . . . ‘does

not address, much less specify any discretion associated with, the pace of application

processing.’ Thus, plaintiff’s claim is not barred by § 1252(a)(2)(B)(ii) . . . .” (second quotation

from Duan v. Zamberry, 2007 WL 626116, at *2 (W.D. Pa. Feb. 23, 2007))); accord Tang v.

Chertoff, 493 F. Supp. 2d 148, 153–54 (D. Mass. 2007) (“The clear meaning of 8 U.S.C. §

1252(a)(2)(B)(ii) is that courts may not review decisions specified as discretionary by the INA.

Despite the care taken in the INA to specify the substance of an adjustment of status decision as

discretionary, the pacing of such a decision is not so specified.”). Many other courts—“the

overwhelming majority of district courts,” one judge has suggested, Hassane v. Holder, 2010

WL 2425993, at *3 (W.D. Wash. June 11, 2010)—have similarly “concluded that 8 U.S.C. §

1252(a)(2)(B)(ii) does not bar judicial review of claims alleging unreasonable delays in the

disposition of I-485 applications of asylees associated with Tier III terrorist organizations,” Al-

Rifahe v. Mayorkas, 776 F. Supp. 2d 927, 932 (D. Minn. 2011); (citing Sultan v. Roark, 2010

WL 1992195, at *3 (E.D. Cal. May 13, 2010); Khan v. Scharfen, 2009 WL 941574, at *4–5

(N.D. Cal. Apr. 6, 2009); Sawad v. Frazier, 2007 WL 2973833, at *2 (D. Minn. Oct. 9, 2007)).

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That conclusion is supported by the Supreme Court’s recent decision in Kucana v.

Holder, 130 S. Ct. 827 (2010). Kucana also involved the interpretation of § 1252(a)(2)(B)(ii).

Calling “specified under this subchapter” the “key words” in § 1252(a)(2)(B), Kucana, 130 S.

Ct. at 831, the Court noted that “§ 1252(a)(2)(B)(ii), speaks of authority ‘specified’—not merely

assumed or contemplated—to be in the Attorney General’s discretion. ‘Specified’ is not

synonymous with ‘implied’ or ‘anticipated.’” Id. at 834 n.10. The Kucana Court read

§ 1252(a)(2)(B)(ii) in the context of § 1252(a)(2)(B)(i), observing that the determinations listed

by the earlier provision “are substantive decisions made by the Executive in the immigration

context as a matter of grace, things that involve whether aliens can stay in the country or not.”

Id. at 837 (brackets, citation, ellipses, and internal quotation marks omitted; emphasis added). It

noted that the “decisions . . . shielded from court oversight by § 1252(a)(2)(B)(ii), are of a like

kind.” Id. Because a decision on a motion to reopen removal proceedings—the motion at issue

in Kucana—is an “adjunct ruling[],” “a procedural device serving to ensure that aliens are

getting a fair chance to have their claims heard” which a court could reverse without “direct[ing]

the Executive to afford the alien substantive relief,” the Supreme Court held that decisions on

such motions were subject to judicial review. Id. (internal quotation marks and brackets

omitted). Here too, an order that USCIS adjudicate Ms. Geneme’s application would not afford

her substantive relief, but only ensure that she got a fair chance to have her claims heard in a

timely manner.

Finally, the Kucana Court invoked a well-known canon of construction to dispell “[a]ny

lingering doubt about the proper interpretation of 8 U.S.C. § 1252(a)(2)(B)(ii).” Id. at 839.

“[T]he presumption favoring judicial review of administrative action” provides that “[w]hen a

11

statute is ‘reasonably susceptible to divergent interpretation, we adopt the reading that accords

with traditional understandings and basic principles: that executive determinations generally are

subject to judicial review.’” Id. (quoting Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434

(1995)). The Court noted that it has “consistently applied that interpretive guide to legislation

regarding immigration, and particularly to questions concerning the preservation of federal-court

jurisdiction,” and that clear and convincing evidence of Congressional intent was required to

displace the presumption. Id. The Kucana Court found no such evidence; neither has this court

found any.

“[T]he title of § 1252(a)(2)(B), ‘Denials of discretionary relief,’ confirms that the

provision was not intended to sweep as broadly as defendants contend.” Al Jabari, 536 F. Supp.

2d at 1036. “While the ultimate decision to grant or deny an application for adjustment of status

is unquestionably discretionary, there exists a non-discretionary duty to act on and process the

application.” Dong v. Chertoff, 513 F. Supp. 2d 1158, 1165 (N.D. Cal. 2007). “The language of

§ 1252(a)(2)(B)(ii) . . . . refers not to ‘discretionary decisions,’ . . . but to acts the authority for

which is specified under the INA to be discretionary.” Spencer Enters., Inc. v. United States,

345 F.3d 683, 689 (9th Cir. 2003). For that reason, “[f]ederal appellate courts have . . .

construed § 1252(a)(2)(B)(ii) narrowly.” Al-Rifahe, 776 F. Supp. 2d at 932; see, e.g., Iddir v.

INS, 301 F.3d 492, 497 (7th Cir. 2002) (holding that § 1252(a)(2)(B) “only bars review of actual

discretionary decisions to grant or deny relief under the enumerated sections”). This court does

so as well. Title 8, Chapter 12, Subchapter II does not specify that USCIS shall have discretion

to decide whether and when to adjudicate applications for adjustment of status, and so the court

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retains jurisdiction over Ms. Geneme’s claim that it has unreasonably delayed the adjudication.

The court will therefore proceed to address the government’s motion for summary judgment.

B. Claims of Unreasonable Delay

The Administrative Procedure Act empowers courts to “compel agency action unlawfully

withheld or unreasonably delayed.” 5 U.S.C. § 706(1); see also id. § 555(b) (“With due regard

for the convenience and necessity of the parties or their representatives and within a reasonable

time, each agency shall proceed to conclude a matter presented to it.”). This Circuit applies a

six-factor test to determine whether agency action has been unreasonably delayed:

(1) the time agencies take to make decisions must be governed by a rule of reason;

(2) where Congress has provided a timetable or other indication of the speed with

which it expects the agency to proceed in the enabling statute, that statutory scheme

may supply content for this rule of reason;

(3) delays that might be reasonable in the sphere of economic regulation are less

tolerable when human health and welfare are at stake;

(4) the court should consider the effect of expediting delayed action on agency

activities of a higher or competing priority;

(5) the court should also take into account the nature and extent of the interests

prejudiced by delay; and

(6) the court need not find any impropriety lurking behind agency lassitude in order

to hold that agency action is ‘unreasonably delayed.

In re United Mine Workers of Am. Int’l Union, 190 F.3d 545, 549 (D.C. Cir. 1999) (quoting

TRAC, 750 F.2d at 80) (citations and quotation marks omitted).

“With regard to the first and second TRAC factors, the APA’s general reasonableness

standard applies in the absence of an explicit timeline in the relevant statutes.” Al-Rifahe, 776 F.

Supp. 2d at 936 (citing Hassane, 2010 WL 2425993, at *4). The government argues that its

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decision to place a hold on Ms. Geneme’s application is reasonable because the process of

deciding how to exercise its discretionary authority to exempt supporters of Tier III groups from

inadmissibility is painstaking. But this argument presupposes that Ms. Geneme’s application

cannot be processed until a final decision has been made as to whether supporters of the Oromo

Liberation Front should be exempted from inadmissibility. USCIS of course has another option:

it can deny the application. Indeed, the agency has informed Ms. Geneme that “USCIS currently

has no authority not to apply the inadmissibility ground(s) to which you appear to be subject,”

but that “[r]ather than denying [her] application based on inadmissibility” the agency has

decided to “hold[ ] adjudication in abeyance” in the hopes of eventually resolving the matter in

Ms. Geneme’s favor. Compl., Ex. K (Letter from USCIS, Dec. 11, 2009). Ms. Geneme would

apparently prefer any resolution—even an adverse determination—to an indefinite delay.

Already her application has been pending for eight years, and on hold for five. She does not

argue that the agency’s evaluation of the Oromo Liberation Front has been unreasonably

delayed; rather, she argues that the agency has some ongoing obligation to process her

application, notwithstanding its uncertainty about the status of the group she has supported.

The court does not doubt that the determination of whether to grant an exemption to Ms.

Geneme is “a delicate and difficult task” nor that “[USCIS] is striving to maintain consistency

and make reasoned decisions.” Al-Rifahe, 776 F. Supp. 2d at 936 (quoting Al Karim v. Holder,

2010 WL 1254840, at *3 (D. Colo. Mar. 29, 2010) (alteration in Al-Rifahe)). But that difficulty

does not eliminate “the agency’s obligation to act on plaintiff’s application in a reasonably

timely manner.” Id. (quoting Al Karim, 2010 WL 1254840, at *3); accord Kashkool v. Chertoff,

553 F. Supp. 2d 1131, 1144 (D. Ariz. 2008) (“The lack of a specific timetable does not mean that

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USCIS can take an infinite amount of time to process Plaintiff’s adjustment of status

application.”). It should not take eight years to act on an application for permanent residence.

Accord Han Cao v. Upchurch, 496 F. Supp. 2d 569, 577 (E.D. Pa. 2007) (concluding that “a

four-year delay in the review of an application for legal permanent residence is presumptively

unreasonable”); Elkhatib v. Butler, 2005 WL 5226742, at *2 (S.D. Fla. June 7, 2005) (holding

that “four years is an unreasonable length of time for Petitioner’s Application [for adjustment of

status] to remain pending”); see Al-Rifahe, 776 F. Supp. 2d at 938 (finding that an “indefinite

hold on the adjudication of [an adjustment of status] application” may be unreasonable); see also

In re Am. Rivers & Idaho Rivers United, 372 F.3d 413, 419 (D.C. Cir. 2004) (six year delay in

responding to a petition held “nothing less than egregious”); Air Line Pilots Ass’n, Int’l v. Civil

Aeronautics Bd., 750 F.2d 81, 86 (D.C. Cir. 1984) (five-year delay unreasonable); Public Citizen

Health Research Grp. v. Auchter, 702 F.2d 1150, 1157–59 (D.C. Cir. 1983) (per curiam) (three-

year delay unreasonable); MCI Telecomms. Corp. v. FCC, 627 F.2d 322, 325 (D.C. Cir. 1980)

(four-year delay in determining a tariff held unreasonable).

The third and fifth TRAC factors are closely related in this case. “[D]elays that might be

reasonable in the sphere of economic regulation are less tolerable” when Ms. Geneme’s welfare

is at stake, and so the court must consider the “nature and extent of the interests” that she argues

have been “prejudiced by the delay.” In re United Mine Workers, 190 F.3d at 549 (quoting

TRAC, 750 F.2d at 80). Ms. Geneme argues that she cannot adequately plan for her future

without knowing whether or not she will be permitted to adjust her status, because her ability to

work and to travel would be so much greater as a permanent resident than they are as an asylee.

She asserts—and the court does not doubt—that this uncertainty has a substantial and

15

substantially negative impact on her welfare and her peace of mind. The government, in turn,

argues that Ms. Geneme actually benefits from the delay because it allows USCIS to consider the

possibility that it should grant her application at a later date rather than simply denying it now.

As other courts have noted, Ms. Geneme “undoubtedly ‘understands that [her] application may

be denied, but the consequences of the indefinite . . . delay in adjudication of [her] application’”

are also considerable. Al-Rifahe, 776 F. Supp. 2d at 937 (quoting Al Karim, 2010 WL 1254840,

at *4). And Ms. Geneme presumably would not have brought this suit unless she preferred the

likelihood that her application would be denied to the uncertainty of not knowing when it would

be adjudicated. The court therefore concludes that the third and fifth TRAC factors weigh in Ms.

Geneme’s favor.

Finally, the court considers “the effect of expediting delayed action on agency activities

of a higher or competing priority.” In re United Mine Workers, 190 F.3d at 549 (quoting TRAC,

750 F.2d at 80). The government argues that an order requiring the immediate adjudication of

Ms. Geneme’s application would encroach on the discretion that Congress has granted the

Secretaries of State and Homeland Security to exempt Tier III terrorist groups from the

inadmissibility provisions of the INA. The court is somewhat perplexed by this argument. As

two other courts have noted, “[d]efendants provide no reason why plaintiff’s application cannot

be adjudicated immediately, subject to future re-opening and review when and if USCIS policies

regarding [the Oromo Liberation Front] change.” Al-Rifahe, 776 F. Supp. 2d at 937 (quoting Al

Karim, 2010 WL 1254840, at *3). Adjudicating Ms. Geneme’s application would not

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substantially interfere with the government’s consideration of the broader issue of whether to

issue a blanket exemption to supporters of the Oromo Liberation Front.6

IV. CONCLUSION

“That classification of the [Oromo Liberation Front] may change at some indeterminate

point in the future does not justify leaving plaintiff’s application in an indefinite state of limbo.”

Al-Rifahe, 776 F. Supp. 2d at 937 (quoting Al Karim, 2010 WL 1254840, at *3). Ms. Geneme’s

application has been pending for eight years, and on hold for five. The court concludes that,

under the six-factor test set out in TRAC, the government is not entitled to a judgment that this

delay is reasonable. The government’s motion will therefore be denied.

Ms. Geneme has not moved for a writ of mandamus. USCIS and the Department of

Homeland Security appear to be actively considering whether supporters of the Oromo

Liberation Front will be eligible for exemptions from inadmissibility under the Secretary of

Homeland Security’s recent exercise of her discretionary authority. But Ms. Geneme seems to

prefer a denial of her application to a further delay in its adjudication. She should carefully

consider that preference before filing her mandamus motion.

Rudolph Contreras

United States District Judge

Date: March 31, 2013

6

“As to the sixth TRAC factor, there is no evidence of any impropriety behind the delays,

but the Court need not find any in determining whether the delay is unreasonable under the

APA.” Al-Rafahe, 776 F. Supp. 2d at 937 n.7.

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