                         UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF COLUMBIA
____________________________________
                                     )
AMRIT PAL SINGH,                     )
                                     )
                    Plaintiff,       )
                                     )
        v.                           )    Civil Action No. 09-499 (RBW)
                                     )
JANET NAPOLITANO,                    )
Secretary of Homeland Security,      )
et al.,                              )
                                     )
                    Defendants.      )
____________________________________)


                                       MEMORANDUM OPINION

        Amrit Pal Singh, the plaintiff in this civil lawsuit, seeks, inter alia, “an order requiring

[defendants Janet Napolitano, Sarah Taylor, and Eric Holder] to promptly adjudicate his

[a]pplication for [a]djustment of [s]tatus to permanent residency and to issue a declaratory

judgment declaring that [the United States Customs and Immigration Service]’s [alleged] failure

to respond for almost nine years to a request for an approval of adjustment of status is an abuse

of discretion.”1 Petition for Writ of Mandamus, Declaratory Judgment, and Injunctive Relief for

Delaying the Decision on the Application for Adjustment of Status (the “Pl.’s Pet.”) at 7. On

July 24, 2009, the defendants filed a motion to dismiss the plaintiff’s Petition for lack of subject-

matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) or for summary

judgment pursuant to Federal Rule of Civil Procedure 56.                       Memorandum of Points and

Authorities in Support of Defendants’ Motion to Dismiss[] or[,] in the [Alternative], for

1
 The plaintiff is suing each of the defendants in their official capacities—Ms. Napolitano as Secretary of Homeland
Security, Ms. Taylor as District Director for the United States Citizenship and Immigration Services, and Mr. Holder
as Attorney General.
Summary Judgment (the “Defs.’ Mem.”) at 1. The Court held a hearing on the merits of the

defendants’ motion on March 22, 2010, and after carefully considering the parties’ arguments at

the hearing, the defendants’ motion to dismiss or for summary judgment, and all relevant

submissions and attachments thereto,2 the Court concludes, as it did at the hearing, that it lacks

subject-matter jurisdiction to entertain this case.

                                                   I. Background3

         The plaintiff is a citizen of India who currently resides in the United States pursuant to a

grant of asylum issued on May 12, 1999. Defs.’ Stmt. of Facts ¶1. Based on his asylum status,

the plaintiff “filed an adjustment of status application (Form I-485) on August 14, 2000.” Pl.’s

Pet. ¶ 6. Presumably as part of adjudicating the plaintiff’s adjustment of status application, the

defendants reviewed the plaintiff’s asylum application, in which they discovered that the plaintiff

was a member of and provided material support to the Babbar Khalsa International, and provided

material support to the Sikh Student Federation, Bittu Faction, Defs.’ Stmt. of Facts ¶ 2, both

considered to be Tier II and Tier III terrorist organizations, respectively, Defs’ Mot. at 4-5.

Pursuant to a March 26, 2008 memorandum issued by the United States Citizenship and

Immigration Services’ (“USCIS”) deputy director (the “Policy Memorandum”), its current policy


2
 In addition to the plaintiff’s Petition and the defendants’ motion to dismiss and their memorandum of points and
authorities in support thereof, the Court considered the following documents in rendering its decision: (1) the
Plaintiff’s Opposition to Defendant[]s[’] Motion to Dismiss, or[,] in the Alternative, for Summary Judgment (the
“Pl.’s Opp’n”); (2) Defendants’ Statement of Undisputed Material Facts (the “Defs.’ Stmt. of Facts”); and (3) the
Defendants’ Reply in Further Support of Their Motion to Dismiss, or[,] in the Alternative, for Summary Judgment.
3
 The plaintiff has failed to file a statement of material facts in compliance with Local Rule 7(h), and thus the Court
will treat the defendants’ asserted facts as undisputed. Local Civ. R. 7(h) (stating that “[i]n determining a motion for
summary judgment, the court may assume that facts identified by the moving party in its statement of material facts
are admitted, unless such fact is controverted in the statement of genuine issues filed in opposition to the motion”);
Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 154 (D.C. Cir. 1996) (affirming
decision in defendant’s favor after plaintiff’s statement failed to rebut the defendant’s statement); Wiesner v. FBI,
577 F. Supp. 2d 450, 452 (D.D.C. 2008) (Walton, J.) (“The Court therefore treats the [defendant’s] asserted facts as
undisputed for purposes of its motion to dismiss or for summary judgment.”).




                                                           2
regarding applications for adjustment of status for asylees who have provided material support to

terrorist organizations is to withhold adjudication of cases that could potentially benefit from the

Secretary’s authority, after consultation with the Attorney General, to determine in her “sole

unreviewable discretion” whether to grant a waiver of inadmissibility to a particular person, 8

U.S.C. § 1182(d)(3)(B)(i) (2006), who affords support to a Tier II and Tier III terrorist

organization, 8 U.S.C. § 1182(a)(3)(B) (2006).        Defs.’ Stmt. of Facts ¶¶ 4-5.      Thus, the

defendants have not adjudicated the plaintiff’s adjustment of status application due to this policy.

Id. ¶ 5.

           The plaintiff filed this action on March 16, 2009, arguing that “the [d]efendants have

unlawfully withheld and unreasonably delayed action on [the p]laintiff’s application,” pursuant

to 5 U.S.C. § 706 (2006). Pl.’s Pet. ¶ 24. The plaintiff seeks declaratory relief and a writ of

mandamus. Pl.’s Pet. at 7. The defendants, for their part, argue that the plaintiff’s petition

should be dismissed on subject-matter jurisdiction grounds. Specifically, the defendants argue

that as to Attorney General Holder, the case should be dismissed because the “[p]laintiff’s

[a]pplication is not being delayed due to any background checks or any activities of the FBI or

DOJ, and thus, [the plaintiff] lacks standing to sue the FBI or DOJ because he is not suffering

any injury by virtue of their activities.” Defs.’ Mot. at 7. As to the remaining defendants, they

argue that the USCIS’s decision to hold the plaintiff’s adjustment of status application in

abeyance is a discretionary decision that falls outside of this Court’s jurisdiction under the

Immigration and Nationality Act, 8 U.S.C. § 1252(a)(2)(B).

                                        II. Standard of Review

           In deciding a motion to dismiss based upon lack of subject-matter jurisdiction under

Federal Rule of Civil Procedure 12(b)(1), a Court is not limited to the allegations set forth in the




                                                 3
complaint, but “may consider materials outside of the pleadings in deciding whether to grant a

motion to dismiss for lack of jurisdiction[.]” Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d

1249, 1253 (D.C.Cir. 2005). Under Rule 12(b)(1), “[i]t is to be presumed that a cause lies

outside [the federal courts'] limited jurisdiction,” Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375, 377 (1994), unless the plaintiff establishes by a preponderance of the evidence that

the Court possesses jurisdiction, see e.g. Hollingsworth v. Duff, 444 F. Supp. 2d 61, 63 (D.D.C.

2006) (Collyer, J.).

       Furthermore, because the defendants are alleging that Section 1252(a)(2)(B)(ii) strips this

Court of jurisdiction, they must “overcome the strong presumption in favor of judicial review of

administrative action.” INS v. St. Cyr, 533 U.S. 289, 298 (2001). Thus, only upon a “showing

of clear and convincing evidence of a contrary legislative intent [should] the courts restrict

access to judicial review.” Bd. of Governors of the Fed. Reserve Sys. v. MCorp Fin., Inc., 502

U.S. 32, 44 (1991) (citation and internal quotation marks omitted). But, the Court also must be

mindful of “the general rule that courts should refrain from interfering with matters of

immigration and national security.” Orlov v. Howard, 523 F. Supp. 2d 30, 36 (D.D.C. 2007)

(Bates, J.); see also INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (“[J]udicial deference to

the Executive Branch is especially appropriate in the immigration context where officials

exercise especially sensitive political functions that implicate questions of foreign relations”

(internal quotation marks omitted)).

                                          III. Legal Analysis

       As an initial matter, it does not appear from the face of the plaintiff’s Petition that he has

set forth sufficient allegations to establish Article III standing to bring suit against the Attorney

General or the Department of Justice.        “To demonstrate standing under Article III of the




                                                 4
Constitution, [the plaintiff] must show an injury in fact caused by the defendant and redressable

by judicial relief.” Stilwell v. Office of Thrift Supervision, 569 F.3d 514, 518 (D.C. Cir. 2009)

(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). A qualifying injury must

be “concrete and particularized” and either “actual or imminent.” City of Dania Beach, Fla. v.

FAA, 485 F.3d 1181, 1185 (D.C. Cir. 2007) (citing Fla. Audubon Soc'y v. Bentsen, 94 F.3d 658,

663 (D.C. Cir. 1996)).          Here, the plaintiff alleges that the FBI had the responsibility for

completing a background name check on the plaintiff, that “[t]he background check unduly

delayed the processing of [the p]laintiff’s adjustment application,” and that “thousands of

applicants are facing name check[] delays by the FBI and other agencies for no reason

whatsoever.” Pl.’s Pet. ¶ 20. However, the plaintiff does not allege any harm flowing from this

delay; indeed, his position is that regardless of the delay, he is entitled to have his adjustment of

status application granted under current USCIS policy. See id. ¶¶ 19-20 (claiming that the

USCIS’s policy is to grant adjustment of status applications “even when the FBI name check

request has been pending for more than 180 days”). So, even assuming that there has been a

delay in completing the FBI name check, the plaintiff has not alleged an injury-in-fact necessary

for Article III standing to raise a claim against the Attorney General.4 The Court will, therefore,

dismiss the plaintiff’s claims against the Attorney General.

         As to the remaining defendants, the overarching issue before the Court is whether

subject-matter jurisdiction exists to adjudicate the plaintiff’s Petition to compel the USCIS to

4
  Even assuming that the plaintiff has standing to bring an action against the Attorney General, summary judgment
nonetheless would have to be issued for the Attorney General. The defendants assert in their Statement of
Undisputed Facts that “[t]he FBI provided the results of a name check regarding [the p]laintiff’s [a]pplication to
USCIS on September 10, 2003.” Defs.’ Stmt. of Facts ¶ 5. As noted above in footnote 1, the plaintiff has not
disputed this assertion. Thus, the Court may treat the defendants’ assertion as true and conclude that the plaintiff’s
claim against the Attorney General is moot because the name check has now been completed. Therefore, the
Attorney General would be entitled to summary judgment notwithstanding the justiciability defect of the plaintiff’s
Petition.




                                                          5
rule on his Form I-485 application. The jurisdiction-stripping statute at issue in this case, 8

U.S.C. § 1252(a)(2)(B)(ii), states the following:

           Notwithstanding any other provision of law (statutory or nonstatutory) . . . no
           court shall have jurisdiction to review . . . any other decision or action of the
           Attorney General or the Secretary of Homeland Security the authority for which is
           specified under this subchapter to be in the discretion of the Attorney General or
           the Secretary of Homeland Security . . . .

Considered in the context of its individual components, the defendants can establish the

applicability of Section 1252(a)(2)(B)(ii) by demonstrating that (1) the holding of the plaintiff’s

application in abeyance is within the discretion of the Secretary of Homeland Security; (2) the

discretion exercised by the Secretary is one that is “specified under this subchapter”; and (3) the

specified discretion is an “action” as that term is used in the statute. Two members of this Court

have reached different conclusions as to whether a decision to hold an application in abeyance

meets all three elements. Compare Orlov, 523 F. Supp. 2d at 37 (holding that the pace of

processing an adjustment of status application is a discretionary decision which the INA removes

from this Court’s jurisdiction) with Liu v. Novak, 509 F. Supp. 2d 1, 6-7 (D.D.C. 2007)

(Sullivan, J.) (finding that § 1252(a)(2)(B)(ii) did not bar plaintiff’s claim because agency

inaction does not satisfy the action requirement and pace of processing does not fall under the

Attorney General’s discretion, and, furthermore, that the Secretary’s discretion is not one that is

“specified under this subchapter”).5 Upon evaluating the Orlov and Liu decisions, this member

of the Court believes that Judge Bates’s approach in Orlov is the correct approach and concludes

that the government’s decision to hold the plaintiff’s application in abeyance falls within the

purview of discretionary decisions or actions that fall outside this Court’s jurisdiction.



5
    The District of Columbia Circuit has not issued a decision addressing this issue. Orlov, 523 F. Supp. 2d at 34.




                                                            6
         In assessing the first component of Section 1252(a)(2)(B)(ii), the Court’s analysis starts

with 8 U.S.C. § 1182(d)(3)(B)(i), which states that with few exceptions, “the Secretary of

Homeland Security, after consultation with the Secretary of State and the Attorney General, may

determine in such Secretary’s sole unreviewable discretion that subsection (a)(3)(B) of this

section shall not apply with respect to an alien within the scope of that subsection” (emphasis

added). The Secretary also has discretion to promulgate regulations that she feels are necessary

to exercise her authority to grant permanent resident status to an asylee. See 8 U.S.C. § 1159(b)

(providing that the Secretary of Homeland Security, “in the Secretary’s . . . discretion and under

such regulations as the Secretary . . . may prescribe, may adjust to the status of an alien lawfully

admitted for permanent residence the status of any alien granted asylum”). As Judge Bates

observed in regards to an analogous statute, “[t]he plain meaning of this statute . . . is to grant

[the Secretary] the power and the discretion to promulgate regulations governing how (and

when) adjustment decisions are made, but not to prescribe any time limitation whatsoever.”

Orlov, 523 F. Supp. 2d at 34 (analyzing 8 U.S.C. § 1255(a), which provides that “[t]he status of

an alien . . . may be adjusted by the Attorney General, in his discretion and under such

regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence”

status under certain circumstances) (emphasis added). And even putting aside the congressional

grant of discretion provided by Section 1159(b) to determine how and when adjustment

decisions are made, it is well-settled that, as a general matter, the Secretary also has the

discretion to “fashion [her] own rules of procedure and to pursue methods of inquiry capable of

permitting [her] to discharge [her] multitudinous duties.”6 Vermont Yankee Nuclear Power


6
 The plaintiff asserted during the March 22, 2010 hearing that the USCIS must first rule on his adjustment of status
application before the Secretary can assess whether a waiver of inadmissibility is appropriate, and that because the
agency’s review of the plaintiff’s application involves “nondiscretionary, or purely legal, decisions regarding an
                                                                                                     (continued . . .)


                                                          7
Corp. v. Natural Resources Defense Council, 435 U.S. 519, 543 (1978); cf. Federal Power

Commission v. Transcontinental Gas Pipe Line Corp., 423 U.S. 326, 333 (1976) (reversing

circuit court’s order requiring an investigation to be conducted within 30 days, on the grounds

that “[a]t least in the absence of substantial justification for doing otherwise, a reviewing court

may not . . . proceed by dictating to the agency the methods, procedures, and time dimension of

the needed inquiry”). And pursuant to this clearly-established statutory and case authority, the

Secretary presumably opted to rely on her general discretion to fashion procedural rules under

Vermont Yankee in issuing the Policy Memorandum to assist the agency in “considering several

groups and categories of cases as possible candidates for additional terrorist-related

inadmissibility provision exemptions.”                Defs.’ Mem., Ex. 2 (March 26, 2008 Policy

Memorandum), at 2. Thus, under the statutory scheme and the relevant case law, the Court has

no doubt that the Secretary has the discretion to hold the plaintiff’s application in abeyance.

        The next step in the Court’s analysis is to determine whether the Secretary’s discretion is

“specified” under the same title, chapter, and subchapter of the United States Code as Section

1252(a)(2)(B)(ii). As Judge Sullivan noted in Liu, “Section 1252(a)(2)(B)(ii) does not apply to

all discretionary decisions,” but only to the “narrow[] category of decisions where Congress has

taken the additional step to specify that the sole authority for the action is in the [Secretary’s]

discretion.” Liu, 509 F. Supp. 2d at 7 (citations omitted). Here, Section 1252(a)(2)(B)(ii) is

(. . . continued)
alien’s eligibility for . . . relief,” Sepulveda v. Gonzales, 407 F.3d 59, 62-63 (2d Cir. 2005), Section
1252(a)(2)(B)(ii) does not bar this Court from ordering the agency to reach a decision in regards to the plaintiff’s
application. See also Pl.’s Opp’n at 3 (citing numerous circuit court cases for the proposition that Section
1252(a)(2)(B)(ii) does not strip federal courts of jurisdiction to review nondiscretionary decisions regarding an
alien’s eligibility). This argument is without merit. The Court has found no authority, and the plaintiff cites none,
that supports the proposition that the agency is procedurally compelled to issue a ruling on the adjustment of status
application before determining whether a waiver is appropriate. If anything, the regulation applicable to asylees
seeking adjustments to permanent resident status suggests that the USCIS may contemporaneously consider both the
applicant’s eligibility for adjustment of status and the propriety of a waiver in determining whether to grant the
adjustment of status application. Cf. 8 C.F.R. § 209.2 (“An application for [a] waiver may be filed . . . with the
application for adjustment.”).



                                                         8
located under Title 8, Chapter 12, Subchapter II of the United States Code. Within Subchapter II

are Sections 1151 to 1381 of Title 8. As noted above, the provision that confers discretion on the

Secretary of Homeland Security to determine whether (and how) to issue a waiver of

inadmissibility is found in Section 1159(b), which, of course, falls under Subchapter II.7 Orlov,

523 F. Supp. 2d at 34 (emphasis added). Thus, the Court is satisfied that the second element of

the analysis—that the discretion be “specified under [the same] subchapter” as Section

1252(a)(2)(B)(ii)—is also satisfied.8

        The last step in the analysis is whether the exercise of this specified discretion constitutes

an “action” under Section 1252(a)(2)(B)(ii). While this member of this Court agrees with Judge

Sullivan that “the established body of administrative law . . . distinguishes between” action and

inaction, Liu, 509 F. Supp. 2d at 7, whether the Secretary’s decision to hold the plaintiff’s

adjustment of status application in abeyance constitutes “inaction” that is reviewable by the

Court is a closer question. At first blush, the plaintiff’s argument that the Secretary’s decision to

hold his application in abeyance is “inaction” certainly has some appeal, as the plaintiff’s

application is currently in a state of limbo and has been in this status for several years.

Furthermore, there is a real possibility that without judicial (or other) intervention, the plaintiff’s

application could remain pending indefinitely. On the other hand, Judge Bates’s observation in


7
 The fact that the Secretary did not rely on Section 1159(b) in issuing its Policy Memorandum does not impact the
analysis of whether the Secretary’s determination to hold the plaintiff’s application in abeyance is reviewable. The
only germane inquiry here is whether Congress specifically provided discretion under Subchapter II to allow the
Secretary to determine when adjustment applications are to be adjudicated by the agency, and not whether the
Secretary actually exercised that authority. In other words, the Secretary’s decision to rely on another source of
authority for promulgating procedural rules does not change the fact that Congress has provided similar discretion
under Section 1159(b).
8
  In Liu, Judge Sullivan concluded that “[t]he subchapter . . . does not address, much less specify any discretion
associated with, the pace of application processing.” Liu, 509 F. Supp. 2d at 7. However, Judge Sullivan makes no
mention of Congress’s grant of authority under 8 U.S.C. § 1159(b) and 8 U.S.C. 1255(a) to the Secretary of
Homeland Security and the Attorney General, respectively, to promulgate regulations in furtherance of their
discretion to adjust the status of alien applicants seeking permanent resident status.



                                                         9
Orlov that the word “action” as used in Section 1252(a)(2)(B)(ii) connotes “a series of acts” also

has persuasive force. Orlov, 523 F. Supp. 2d at 35. For instance, one could argue here that the

Secretary’s decision to hold the plaintiff’s application in abeyance is a result of a series of

affirmative acts: the Secretary’s decision to promulgate regulations setting forth the procedures

for removing an adjustment of status application from the general pool to a special pool for

consideration by the Secretary, the Secretary’s removal (via the District Director) of the

plaintiff’s application from the general pool to the select pool, and the act of conducting an

investigation into whether a waiver of admissibility would be appropriate in the plaintiff’s case.

Thus, it is difficult to peg this case squarely within either the “action” or “inaction” categories,

which is hardly surprising, given that the difficulty in distinguishing between what constitutes

“action” and “inaction” has been long acknowledged by courts and academic commentators

alike. See, e.g., DeShaney v. Winnebago County Dep’t of Social Services, 489 U.S. 189, 212

(1989) (Blackmun, J., dissenting) (asserting that “a sharp and rigid line between action and

inaction” amounts to “formalistic reasoning [that] has no place in the interpretation of the broad

and stirring [c]lauses of the Fourteenth Amendment”); Bowers v. DeVito, 686 F.2d 616, 618 (7th

Cir. 1982) (refusing to “pretend that the line between action and inaction . . . is clearer than it

is”); Matthew D. Adler and Seth F. Kreimer, The New Etiquette of Federalism: New York,

Printz, and Yeskey, 1998 S. Ct. Rev. 71, 92 (1998) (“What[] precisely[] makes some person’s (or

some official’s) behavior an ‘action,’ as opposed to a mere failure to act, has been and remains a

topic of considerable controversy in the philosophical literature.”); Thomas A. Eaton and

Michael Lewis Wells, Governmental Inaction as a Constitutional Tort: DeShaney and its

Aftermath, 66 Wa. L. Rev. 107, 109 n.9 (1991) (noting that “the distinction between acts and

omissions often turns on how one poses the question”).




                                                10
       Although the difficulty in defining the term “action” under Section 1252(a)(2)(B)(ii)

would seem to imply that judicial review of the plaintiff’s claim is required, see MCorp, 502

U.S. at 44, a closer examination reveals that as a practical matter, the Court has no choice but to

conclude that the Secretary’s decision to hold the plaintiff’s application in abeyance constitutes

“action,” rather than “inaction.” This is because a review of the Secretary’s decision to hold the

plaintiff’s application in abeyance necessarily entails an indirect review of the Secretary’s

discretionary authority. For example, the Court would have to assess whether the Secretary’s

delay in processing the plaintiff’s application is unreasonable.            See Telecommunications

Research & Action Center v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984) (recognizing six factors

relevant to the determination whether agency delay is unreasonable).              And, the Court’s

assessment of reasonableness would surely require a review of what Congress designed to be a

“careful, time-consuming process given the research needed by law enforcement and intelligence

agencies and the various levels of scrutiny needed within the three Cabinet departments and

between the three Cabinet heads” to determine whether the nature of the agency’s investigation

justifies the delay in processing the plaintiff’s application. Defs.’ Mem. at 15. But these

decisions as to whether and how to conduct an investigation into the plaintiff’s background, as

discussed above, are undoubtedly within the discretionary authority of the Secretary that cannot

be reviewed by this Court; thus a review of the Secretary’s decision to hold the plaintiff’s

application in abeyance is not merely a review of “inaction,” but rather a review of a series of

discretionary acts that is plainly barred by Section 1252(a)(2)(B)(ii). The Court, therefore, finds

that the third element under Section 1252(a)(2)(B)(ii) is also satisfied.




                                                 11
                                                IV. Conclusion

        Based on the foregoing analysis, the defendants’ motion to dismiss for lack of subject-

matter jurisdiction must be granted by the Court. With regards to the Attorney General, the

plaintiff failed to allege any injury-in-fact that would give rise to standing under Article III. As

for the remaining defendants, there is little doubt that the Court is precluded under Section

1252(a)(2)(B)(ii) from reviewing the Secretary’s decision to hold the plaintiff’s application in

abeyance.      Therefore, despite the “general presumption in favor of judicial review of

administrative acts,” Liu, 509 F. Supp. 2d at 7, the Court concludes that it must dismiss the

plaintiff’s Petition.

        SO ORDERED this 11th day of May, 2010.9


                                                                    REGGIE B. WALTON
                                                                    United States District Judge




9
 An order was issued on March 23, 2010 granting the defendants’ motion to dismiss and denying as moot its motion
for summary judgment. An amended and final order will accompany the issuance of this memorandum opinion (1)
vacating the March 23, 2010 Order, (2) granting the defendants’ motion to dismiss, (3) denying as moot the
defendants’ motion for summary judgment, and (4) closing this case.



                                                      12
