                                UNITED STATES DISTRICT COURT
                                FOR THE DISTRICT OF COLUMBIA


  MANOUCHEHR JAFARZADEH &
  SHAHNAZ KARAMI,

             Plaintiffs,
                     v.                                               Civil Action No. 16-1385 (JDB)
  KIRSTJEN NIELSEN, Secretary, U.S.
  Department of Homeland Security, et al. 1

             Defendants.


                                       MEMORANDUM OPINION

         All that is old in this case has been made new again. Manouchehr Jafarzadeh, an Iranian

national seeking to become a lawful permanent resident (“LPR”) of the United States, alleges that

his application was placed in a government program that delays and denies immigration petitions

on overly broad national security grounds. The government filed a motion to dismiss the first

complaint in this matter, arguing, among other things, that the issues in the case must be

adjudicated in removal proceedings, to which the government had already consigned Jafarzadeh.

The Court granted the motion as to some aspects of the complaint, but rejected the idea that the

Court lacked jurisdiction and denied the motion as to most of the claims raised. That complaint

has since been amended, but the new version includes many of the same allegations and causes of

action as the original. And the government has responded in kind, with another motion to dismiss

that raises many—but not all—of the same arguments it raised the first time around. As before,

the Court finds that it has jurisdiction, and that some—but not all—claims can proceed.


         1
         Kirstjen Nielsen, Secretary of Homeland Security, and L. Francis Cissna, Director of the U.S. Citizenship
and Immigration Services, have been automatically substituted for their predecessors pursuant to Federal Rule of Civil
Procedure 25(d).

                                                          1
                                         BACKGROUND

       Jafarzadeh is an Iranian citizen who has lived legally and continuously in the United States

since he entered the country on a student visa in 1979. See Am. Compl. [ECF No. 30] ¶ 8. He has

been married since 1982 to plaintiff Shahnaz Karami, an Iranian citizen and American LPR who

has continuously resided in the United States since 1978. Id. ¶¶ 7, 9. Plaintiffs have three adult

daughters, all of whom are American citizens and reside in the United States. Id. ¶ 9. Jafarzadeh

worked for the Interests Section of the Islamic Republic of Iran, which is housed in the Pakistani

Embassy in Washington, D.C., from June 1991 until he was denied LPR status in 2017. Id. ¶ 20.

       On January 25, 2010, plaintiffs’ daughter Razeyeh filed a Form I-130 Petition for Alien

Relative on behalf of Jafarzadeh, and Jafarzadeh concurrently filed a Form I-485 Application to

Register Permanent Residence or Adjust Status as her immediate relative. Id. ¶¶ 1, 21. Both

petitions remained pending at the U.S. Citizenship and Immigration Services (USCIS), a

component of the Department of Homeland Security (DHS), for over six years. Id. ¶ 21. During

those years, Jafarzadeh was interviewed twice by USCIS—once in 2011 and once in 2014—and

was interviewed or contacted a number of times by the Federal Bureau of Investigation (FBI). Id.

¶¶ 22–23. Jafarzadeh believed, based on the “content and nature of these interviews,” that the FBI

wanted him to become a government informant, id. ¶ 24, and that the FBI “would have used its

power to remove the roadblocks hindering the adjudication of his applications before USCIS” if

he had agreed, id. ¶ 25. Jafarzadeh cooperated with the agents’ questioning, but refused to become

an informant. Id. He also “consistently denied ever having provided support to, expressed support

for, or of having engaged in, terrorism or terrorist-related activity.” Id. ¶ 26.

       For six years, USCIS did not act on Jafarzadeh and Razeyeh’s applications.        Plaintiffs

allege that the applications were funneled into a secret, alternate claims-processing system known



                                                   2
as the Controlled Application Review and Resolution Program (CARRP), which was created in

April 2008. Id. ¶¶ 26, 28–29. Plaintiffs allege that applications on this separate track “are reviewed

under protocols that lack any authority or foundation in statute or regulation,” and which

“mandate[] denial or perpetual delay” of those applications, “regardless of the applicant’s statutory

eligibility for a particular immigration benefit.” Id. ¶ 33.

       Plaintiffs further contend that applications are selected for inclusion in CARRP if the

applicant is a “Known or Suspected Terrorist” (“KST”), which in turn is based on whether the

individual is listed in the “Terrorism Screening Database” (“TSDB”); or is a “Non-Known or

Suspected Terrorist[]” (“non-KST”), meaning she has an “articulable link to . . . an activity,

individual or organization that has engaged in terrorist activity or been a member of a terrorist

organization.” Id. ¶¶ 30–32 (internal quotation marks omitted). According to plaintiffs, the TSDB

is maintained by the FBI, and that agency, among others, is authorized to add individuals to the

database. Id. ¶¶ 31, 34. Under CARRP, once an individual is deemed a KST, USCIS field officers

are prohibited from granting that immigration application, “even if the applicant has satisfied all

statutory and regulatory criteria.” Id. ¶ 38. Thus, plaintiffs argue, CARRP unlawfully delegates

authority over immigration to the FBI and other agencies that add names to the TSDB. Id. ¶ 56.

Plaintiffs also allege that CARRP requires USCIS to deny applications on national security

grounds far broader than those listed in the Immigration and Nationality Act (INA). Id. ¶¶ 47, 56.

       Jafarzadeh and Razeyeh filed this action in June 2016, more than six years after filing their

applications with DHS. The original complaint challenged CARRP on a number of administrative

and constitutional grounds. On December 2, 2016, USCIS granted Razeyeh’s petition, thereby

recognizing Jafarzadeh as her immediate relative. See Collett Decl. [ECF No. 12-1] ¶ 3; Pls.’

Response [ECF No. 21] at 1. But on February 10, 2017, USCIS denied Jafarzadeh’s application



                                                  3
for adjustment of status and placed him in removal proceedings. See Collett Decl. ¶¶ 4–5; USCIS

Decision [ECF No. 15-2]; Notice to Appear [ECF No. 17-1]. The government argued that because

plaintiffs sought an order requiring USCIS to act on their applications, their complaint had become

moot. See Defs.’ Mot. to Dismiss [ECF No. 12] at 7–8. DHS also asserted that the relief plaintiffs

sought can only be obtained through the administrative process before an immigration judge (“IJ”)

and the Board of Immigration Appeals (BIA), followed by appeal to the appropriate circuit court.

See Defs.’ Reply Br. [ECF No. 17] at 5–7 & n.1. Additionally, DHS argued that plaintiffs’ claims

should be dismissed on the merits. Defs.’ Mot. to Dismiss at 8–12.

       In September 2017, the Court granted in part and denied in part defendants’ motion to

dismiss the case. See Sept. 7, 2017 Order [ECF No. 25]; Mem. Op. [ECF No. 26]. The Court first

determined that the claim seeking adjudication of Jafarzadeh’s and Razeyeh’s petitions was moot,

but that the other claims in the case—seeking invalidation of CARRP and a new adjudication free

of CARRP—were not. See Mem. Op. at 8–10. The Court then found that the claims remaining

in the case were ripe and free of finality or exhaustion concerns, because Jafarzadeh did not seek

review of the ultimate decision USCIS had made on his LPR application (which would have to go

through the administrative process outlined above) but rather had brought a collateral challenge to

the procedure by which his application had been adjudicated—a claim which, under the reasoning

of McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991), the text of the INA did not funnel

into the administrative process. See Mem. Op. at 10–20.

       After determining that it had jurisdiction to hear the case, the Court dismissed plaintiffs’

claim to compel compliance with the INA, reasoning that the same claim could be and had been

asserted under the Administrative Procedure Act (APA) and that neither the Mandamus Act nor

the Court’s inherent power to correct ultra vires agency action applied when relief was available



                                                 4
elsewhere. See id. at 20–22. Because the government’s only response to plaintiffs’ substantive

APA claim was that it was moot—an argument the Court rejected—the Court denied the motion

to dismiss that claim. See id. at 22. The Court denied without prejudice the motion to dismiss

plaintiffs’ notice-and-comment claim, observing that the Court did not have enough information

to resolve the issue because neither party had placed any CARRP materials in the record. See id.

at 22–23. However, the Court granted the motion to dismiss plaintiffs’ due process claim, finding

that Jafarzadeh had no liberty or property interest protected by the Due Process Clause and that

Razeyeh had not asserted such an interest herself. See id. at 23–25, 25 n.7. Finally, the Court

found that joining the Director of the Executive Office of Immigration Review (EOIR) as a

defendant, as plaintiffs requested, was unnecessary because the Attorney General was already a

defendant and “is certainly empowered to grant the relief sought.” Id. at 25–26.

       Plaintiffs have since filed an amended complaint. See Am. Compl. The new complaint

substituted Karami, Jafarzadeh’s wife, for his daughter Razeyeh as the second plaintiff. Otherwise,

the amended complaint makes factual allegations essentially identical to those in the original.

Plaintiffs also bring many of the same claims for relief, though they have adjusted some in response

to the Court’s prior opinion.    They claim that USCIS must re-adjudicate Jafarzadeh’s LPR

application “exclusive of CARRP” (Count I), id. ¶¶ 49–53; that CARRP violates the separation of

powers by creating criteria and procedures not authorized by the INA (Count II), id. ¶¶ 54–57; that

CARRP violates the APA because it is not in accordance with the INA or the Constitution (Count

III), id. ¶¶ 58–59; that adjudicating Jafarzadeh’s application under CARRP without explanation or

a process to challenge his subjection to CARRP violates Karami’s due process rights to family

unity and the maintenance and enjoyment of her marriage in the United States (Count IV), id. ¶¶

60–64; and that CARRP is an agency rule that was improperly promulgated without notice and



                                                 5
comment in violation of the APA (Count V), id. ¶¶ 65–70. The government has filed a motion to

dismiss the amended complaint, which is now ripe for decision. See Defs.’ Mot. to Dismiss Pls.’

Am. Compl. (“2d Mot. to Dismiss”) [ECF No. 31].

                                       LEGAL STANDARD

       Defendants have moved to dismiss this case both for lack of subject-matter jurisdiction

under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim under Rule 12(b)(6).

On a motion to dismiss for lack of subject-matter jurisdiction, a plaintiff “bears the burden of

showing that he has standing.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). The

plaintiff “must demonstrate standing for each claim he seeks to press and for each form of relief

that is sought.” Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (citation

omitted). At the motion-to-dismiss stage, plaintiffs must plead facts that, taken as true, render it

plausible that the Court has subject-matter jurisdiction. See Humane Soc’y of the U.S. v. Vilsack,

797 F.3d 4, 8 (D.C. Cir. 2015). The Court must take all facts alleged in the complaint as true and

make all reasonable inferences in plaintiffs’ favor. Id. The Court “may consider materials outside

the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.” See Gulf

Coast Mar. Supply, Inc. v. United States, 867 F.3d 123, 128 (D.C. Cir. 2017) (citation omitted).

       To survive a motion to dismiss under Rule 12(b)(6), a complaint must “contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

Plaintiffs cannot meet this standard through “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678. Likewise, a court need

not accept a plaintiff’s legal conclusions, even if they are dressed up as factual allegations. See

Sickle v. Torres Advanced Enter. Sols., LLC, 884 F.3d 338, 345 (D.C. Cir. 2018). However, just



                                                  6
as with Rule 12(b)(1) motions, courts must accept as true all facts stated in the complaint and make

all reasonable inferences in plaintiffs’ favor. Id.

                                           ANALYSIS

    I.      J URIS DICTION

         The government raises—with varying degrees of explication—four arguments why the

Court lacks jurisdiction over plaintiffs’ suit. They claim: (1) the case is moot; (2) the INA strips

the Court of jurisdiction while Jafarzadeh is in removal proceedings; (3) plaintiffs lack Article III

standing; and (4) the statute of limitations has run. The Court will examine each assertion in turn.

            A. Mootness

         The government first argues that the case is moot because USCIS has already adjudicated

Jafarzadeh’s application, depriving the Court of a live controversy. This assertion formed “[t]he

government’s primary argument” in its first motion to dismiss. Mem. Op. at 8. The Court held

that plaintiffs’ claims were rendered moot only “[t]o the extent that the relief the plaintiffs seek is

an order requiring USCIS to act on their application.” Id. The Court therefore dismissed the count

in the original complaint that challenged USCIS’s delay and requested a final decision, but

dismissed plaintiffs’ INA and substantive APA claims only to the extent that they sought that same

relief. See id. at 8–10. The Court denied the motion to dismiss those claims to the extent they

sought other relief, “e.g., a declaratory judgment that CARRP is unlawful and a remand for USCIS

to reconsider Jafarzadeh’s application without applying CARRP.” Id. at 10. The Court also denied

the motion to dismiss plaintiffs’ due process and notice-and-comment claims. Id. The government

has pointed to no “intervening circumstance” between September 2017 and the present that

“deprives the plaintiff of a ‘personal stake in the outcome of the lawsuit’” so as to render the case

moot now. Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 72 (2013) (citation omitted).



                                                      7
       However, the government also argues that, because the IJ can make a de novo

determination of Jafarzadeh’s eligibility for LPR status “that is not affected by either USCIS’s

decision or CARRP,” the Court cannot grant any meaningful relief beyond what Jafarzadeh can

already receive in removal proceedings. 2d Mot. to Dismiss at 8; see Reply in Supp. of Mot. to

Dismiss (“Reply”) [ECF No. 33] at 6–7. Therefore, the government asserts, “[a]ny opinion issued

at this point would be an impermissible advisory opinion.” 2d Mot. to Dismiss at 9; Reply at 7.

       “A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of

Article III—‘when the issues presented are no longer “live” or the parties lack a legally cognizable

interest in the outcome.’” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (citation omitted).

Here, the question is whether plaintiffs still have a legally cognizable injury that gives them an

interest in the outcome of this case. For reasons explained in Part I.C, infra, the answer to that

question is yes: Jafarzadeh has suffered a procedural injury which continues to affect his concrete

interests in remaining and working in this country. Renewing Jafarzadeh’s application in the

removal proceedings will not cleanse him of his injury, unless the IJ actually grants him LPR

status. The Court, by sending Jafarzadeh’s application back to USCIS for reconsideration, would

be able to provide plaintiffs one chance more at achieving LPR status than they would receive

from an IJ alone—a fact that suffices to keep the case alive. See Knox v. SEIU, Local 1000, 567

U.S. 298, 307–08 (2012) (“A case becomes moot only when it is impossible for a court to grant

any effectual relief whatever to the prevailing party.” (citation and internal quotation marks

omitted)). Thus, the government has not met its “heavy burden” of proving mootness. Honeywell

Int’l, Inc. v. Nuclear Regulatory Comm’n, 628 F.3d 568, 576 (D.C. Cir. 2010).

           B. The INA and Jurisdiction-Channeling




                                                 8
         In its opinion on the first motion to dismiss, the Court determined that 8 U.S.C. § 1252(a)–

(b), which channels to an administrative process most claims relating to orders of removal, did not

strip the Court of jurisdiction over the claims in this case. See Mem. Op. at 10–20. 2 Now,

however, the government argues that “[a]ny injunction granting Plaintiffs the relief they seek

would . . . run afoul of” another subsection of this same provision, 8 U.S.C. § 1252(g). 2d Mot. to

Dismiss at 11; see Reply at 5. That subsection reads, in relevant part: “[N]o court shall have

jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or

action by the Attorney General to commence proceedings, adjudicate cases, or execute removal

orders against any alien under this chapter.” 8 U.S.C. § 1252(g). Thus, while § 1252(a)–(b)

channels claims to the circuit courts, § 1252(g) deprives all courts of jurisdiction. The government

puts § 1252(g) forward primarily as a question of what remedy the Court can provide, and therefore

of redressability—a question explored further below. However, the government also argues that

this subsection is clear enough to preclude the Court’s jurisdiction over plaintiffs’ claims under




         2
           At times in its briefing and at oral argument, the government once again raised § 1252(a)–(b). The Court
is unpersuaded by these attempts to relitigate its reading of those provisions. However, the government did raise two
points at argument that merit attention. First, the government cited the Second Circuit’s decision in Rajah v. Mukasey,
544 F.3d 427 (2d Cir. 2008), to claim that circuit courts can review the legality of government programs in the course
of reviewing a final order of removal. The regulations challenged in Rajah were published in the Code of Federal
Regulations, and the petitioners argued that they were facially invalid on a number of grounds. See id. at 434–43.
Here, by contrast, plaintiffs challenge a program some of the details of which have been withheld from the public, and
Jafarzadeh’s subjection to which the government refuses to admit. Some of plaintiffs’ claims thus require developing
a record, which was not the case in Rajah. In any event, foreclosure of judicial review is only one of several “general
guideposts” used to determine whether a claim must be channeled to an administrative review process. See Jarkesy
v. SEC, 803 F.3d 9, 17 (D.C. Cir. 2015). The Court has already explained why all these guideposts point away from
applying the INA’s exclusive review mechanism to plaintiffs’ claims. See Mem. Op. at 10–20.
         Second, government counsel suggested that § 1252(b)’s jurisdiction-routing provision does not prevent
Jafarzadeh from developing a record upon which a circuit court can review CARRP’s legality, because 28 U.S.C.
§ 2347(b)(3) allows a circuit court to “transfer the proceedings to a district court” for fact-finding in certain instances.
This provision, however, does not alter the Court’s determination that it has jurisdiction under McNary. Section
2347(b)(3), by its terms, does not apply unless “the agency has not held a hearing before taking the action of which
review is sought by the petition.” Though final orders of removal are subject to § 2347, see 8 U.S.C. § 1252(a)(1),
they cannot be entered until the IJ has held a hearing to determine whether an individual is removable, see 8 U.S.C.
§ 1229a(a)–(c)(1)(A); 8 C.F.R. § 1240.10. Thus, § 2347(b)(3)’s transfer option will not be available to Jafarzadeh.

                                                             9
the McNary decision. See Reply at 5 n.3. It is therefore necessary to determine whether § 1252(g),

unlike § 1252(a)–(b), strips the Court of jurisdiction over this case.

        The Supreme Court has rejected a broad reading of § 1252(g)’s scope, holding that it

“applies only to [the] three discrete actions” explicitly mentioned in the text—that is, to the

Attorney General’s “‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute

removal orders.” Reno v. Am.-Arab Anti-Discrimination Comm. (“AAADC”), 525 U.S. 471, 482

(1999) (quoting 8 U.S.C. § 1252(g)). Section 1252(g) does not apply to the “many other decisions

or actions that may be part of the deportation process.” Id. In this case, plaintiffs challenge

CARRP and its use in Jafarzadeh’s LPR application procedure. The agency actions they challenge

are separate from—and, indeed, predate—any decision or action to commence or adjudicate

Jafarzadeh’s removal proceeding. Therefore, on a plain-text reading of the statute, plaintiffs’

claims do not “aris[e] from” any of the actions enumerated in § 1252(g). All the more so since the

Supreme Court has “not interpret[ed] this language to sweep in any claim that can technically be

said to ‘arise from’” those actions, but rather has read it only to refer to “those three specific actions

themselves.” Jennings v. Rodriguez, 138 S. Ct. 830, 841 (2018). Indeed, at least two circuits have

explicitly held that challenges to actions predating the decision to initiate removal proceedings are

not subject to § 1252(g)’s jurisdictional bar. See Kwai Fun Wong v. United States, 373 F.3d 952,

965 (9th Cir. 2004); Humphries v. Various Fed. USINS Employees, 164 F.3d 936, 944 (5th Cir.

1999). Since plaintiffs’ claims arise from the process by which Jafarzadeh’s LPR application was

handled, rather than from USCIS’s ensuing decision to commence removal proceedings, § 1252(g)

does not deprive this Court of jurisdiction.

        The same factors that led the Court to find § 1252(a)–(b) inapplicable also confirm that

§ 1252(g) does not forbid review of plaintiffs’ claims. The text of § 1252(g) does not expressly



                                                   10
limit district court jurisdiction for claims arising from events other than the three enumerated

actions. See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 489 (2010).

Nor does the text of any other provision in § 1252 limit jurisdiction over these collateral claims.

See Mem. Op. at 16–20. Granted, some courts have refused to exercise jurisdiction over claims

that fell outside the text of § 1252 when they were seen as indirectly attacking the plaintiffs’

removal orders. See, e.g., Singh v. USCIS, 878 F.3d 441, 445–46 (2d Cir. 2017); Martinez v.

Napolitano, 704 F.3d 620, 622 (9th Cir. 2012); Estrada v. Holder, 604 F.3d 402, 408 (7th Cir.

2010); Chen v. Rodriguez, 200 F. Supp. 3d 174, 182 (D.D.C. 2016). But see Zhang v. Napolitano,

604 F. Supp. 2d 77, 80 (D.D.C. 2009) (“Although it is apparent that Zhang’s ultimate goal is to

prevent the Attorney General from executing the removal order upheld by the First Circuit, his

present claim seeks only to compel the USCIS to act on his asylum application . . . .”). But in all

of those cases the plaintiffs had already received orders of removal, review of which is explicit ly

channeled to the courts of appeals, and were seeking indirectly to nullify those orders. Jafarzadeh

has not yet had a merits hearing before an IJ, much less received an order of removal. Hence, this

case is governed by the general rule: “claims falling outside the text of a jurisdiction-channe ling

provision . . . may proceed in the district court.” Gen. Elec. Co. v. Jackson, 610 F.3d 110, 127

(D.C. Cir. 2010). 3

         Nor does the combination of provisions in § 1252(a)–(b) and § 1252(g) implicitly forbid

review. “Provisions for agency review do not restrict judicial review unless the ‘statutory scheme’



         3
           Normally, “where a statute commits review of agency action to the Court of Appeals, any suit seeking relief
that might affect the Circuit Court’s future jurisdiction is subject to the exclusive review of the Court of Appeals.”
Telecomms. Research & Action Ctr. (TRAC) v. FCC, 750 F.2d 70, 75 (D.C. Cir. 1984). However, “the INA strips
all courts of jurisdiction to review [USCIS] actions other than deportation decisions,” and the TRAC rule does not
apply when stripping district courts of jurisdiction would “deprive the plaintiffs of ‘meaningful judicial review of their
statutory and constitutional claims.’” Daniels v. Union Pac. R.R Co., 530 F.3d 936, 944 (D.C. Cir. 2008) (quoting
McNary, 498 U.S. at 494).

                                                           11
displays a ‘fairly discernible’ intent to limit jurisdiction, and the claims at issue ‘are of the type

Congress intended to be reviewed within th[e] statutory structure.’” Free Enter. Fund, 561 U.S. at

489 (quoting Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207, 212 (1994)). Certainly, § 1252

as a whole displays a discernible intent to limit jurisdiction. After all, § 1252(b)(9) is designed as

a “general jurisdictional limitation” for “claims arising from deportation proceedings,” and

§ 1252(g) “is specifically directed at the deconstruction, fragmentation, and hence prolongation of

removal proceedings,” AAADC, 525 U.S. at 482–83, 487. But the claims in this case are not of

the type intended to be reviewed within the channeled structure of § 1252. The Court’s previous

analysis of § 1252(a)–(b), together with the above examination of § 1252(g), confirms that all of

the criteria that weigh against jurisdiction-stripping apply here. See Free Enter. Fund, 561 U.S. at

489 (“[W]e presume that Congress does not intend to limit jurisdiction if ‘a finding of preclusion

could foreclose all meaningful judicial review’; if the suit is ‘wholly collateral to a statute’s review

provisions’; and if the claims are ‘outside the agency’s expertise.’” (citation omitted)). 4

         Finally, “[a]ny lingering doubt about the proper interpretation of 8 U.S.C. § 1252[] would

be dispelled by a familiar principle of statutory construction: the presumption favoring judicial

review of administrative action.” Kucana v. Holder, 558 U.S. 233, 251 (2010). This presumption

has been “consistently applied” to “legislation regarding immigration, and particularly to questions

concerning the preservation of federal-court jurisdiction.”                   Id.   It is assumed that Congress

legislates in the shadow of this canon, and “[i]t therefore takes ‘clear and convincing evidence’ to


         4
           These criteria, as well as the lack of a removal order in this case, differentiate it from the case DHS put
forward as supplemental authority, Vetcher v. Sessions, CA No. 17-1743 (JEB), 2018 WL 2926166 (D.D.C. June 11,
2018); see Notice of Suppl. Authority [ECF No. 34]. In Vetcher, the plaintiff challenged the alleged inadequacy of
the law library at the facility where he was being held, which supposedly prevented him from defending himself in
removal proceedings. See 2018 WL 2926166, at *3. The court determined that this claim was “inextricably linked to
the order of removal” that had been issued as a result of his removal proceedings, and that the plaintiff’s claim was
exactly the sort that the INA intended to be challenged alongside an order of removal. Id. at *4–5 (citation omitted).
The court did review the plaintiff’s claims regarding the length and conditions of his confinement. See id. at *5–6.
Like those latter claims, the claims in this case run collateral to, and are not properly handled in, removal proceedings.

                                                           12
dislodge the presumption.” Id. at 252 (citation omitted). As the preceding discussion indicates,

“[t]here is no such evidence here.” Id. Therefore, § 1252 does not deprive the Court of jurisdiction.

           C. Article III Standing

       In addition to its arguments on mootness and jurisdiction-channeling, the government

asserts that these plaintiffs lack standing to pursue this case. The government first contends that

plaintiffs have suffered no injury and cannot receive relief on any of their claims, and then makes

more particular arguments regarding plaintiffs’ standing to bring their separation of powers claim.

                   1. Standing for All Claims

                           i. Injury-in-fact

       The government claims that plaintiffs cannot identify a cognizable injury for standing

purposes because they “have made no allegations that CARRP applies in immigration court, where

Jafarzadeh . . . can renew his application for adjustment of status.” 2d Mot. to Dismiss at 10.

“CARRP is now irrelevant to [Jafarzadeh’s] immigration proceedings,” the government avers, and

therefore “[Jafarzadeh] is currently receiving the relief that Plaintiffs seek”: adjudication free of

CARRP. Id. The government also asserts that plaintiffs have suffered no more than a speculative

injury from USCIS’s denial of Jafarzadeh’s LPR application, because the IJ, BIA, or circuit court

might still grant a renewed application during removal proceedings. See id. at 10–11.

       “To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a

legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not

conjectural or hypothetical.’” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (quoting Lujan

v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). Here, plaintiffs have pled that they “are seeking

to enforce a procedural requirement the disregard of which could impair a separate concrete

interest of theirs.” Lujan, 504 U.S. at 572. “[A] bare procedural violation” does not create a



                                                 13
concrete injury if it does not “cause harm or present any material risk of harm.” Spokeo, 136 S.

Ct. at 1550. But plaintiffs can satisfy the injury-in-fact requirement if they plausibly allege facts

showing that “(1) the government violated their procedural rights designed to protect their

threatened concrete interest, and (2) the violation resulted in injury to their concrete, particularized

interest.” Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1157 (D.C. Cir. 2005).

        Plaintiffs allege that the INA provides them with the right to a particular process in

evaluating Jafarzadeh’s LPR application, one that is based solely on statutory criteria and the

agency’s discretion rather than on CARRP’s alleged mandate to deny applications for those the

FBI has placed on a watch list. See Am. Compl. ¶¶ 45, 52 (citing 8 U.S.C. § 1255(a)). Likewise,

they claim the Fifth Amendment provides them with a due process right to be told about and to

appeal Jafarzadeh’s placement in CARRP. See id. ¶ 63. Jafarzadeh has a concrete interest in his

ability to travel and to work in the United States, see, e.g., Air Line Pilots Ass’n, Int’l v. Chao, 889

F.3d 785, 789 (D.C. Cir. 2018) (“potential job loss” confers standing), and Karami has a concrete

interest in keeping her husband in the country, see Trump v. Hawaii, 138 S. Ct. 2392, 2416 (2018)

(“[A] person’s interest in being united with his relatives is sufficiently concrete and particularized

to form the basis of an Article III injury in fact.”). These concrete interests are undoubtedly injured

by the alleged violation of the INA’s and the Constitution’s required processes, since plaintiffs

claim the violations led USCIS to deny Jafarzadeh’s application. That caused him to be “treated

as an applicant for admission” without proper documentation, 8 C.F.R. §§ 245.2(a)(4)(ii); Collett

Decl. ¶¶ 4–5, and thereby caused him to lose his previous eligibility to travel outside the United

States under advance parole or to seek work authorization, see 8 U.S.C. § 1324a(a)(1), (h)(3); 8

C.F.R. §§ 245.2(a)(4)(ii), 274a.12(c)(9); 1 Shane Dizon & Nadine K. Wettstein, Immigration Law

Service §§ 2:202, 2:204 (2d ed. 2018). Since plaintiffs’ alleged right to recover for deprivation of



                                                  14
these processes “will be sustained if the Constitution and laws of the United States are given one

construction and will be defeated if they are given another,” Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 89 (1998) (citation omitted), plaintiffs have pled a procedural injury.

       The government nevertheless argues that plaintiffs have no ongoing injury or imminent

threat thereof, because the IJ will provide Jafarzadeh with a CARRP-free review of his application.

But this assertion misunderstands the nature of the harm in a procedural injury case. In such cases,

the procedural violation is almost always in the past; it is only the injury to the concrete interest

protected by the procedural right that is ongoing. In Lujan, for instance, the Court provided two

examples of cognizable procedural injuries: “the procedural requirement for a hearing prior to

denial of [plaintiffs’] license application, or the procedural requirement for an environmental

impact statement before a federal facility is constructed next door to them.” 504 U.S. at 572. In

those situations, the license will have already been denied without a hearing, and the deadline to

conduct the environmental impact statement will have already passed. The fact that the plaintiff

might apply for a license again the next year while his procedural challenge gets litigated, and may

get a hearing in that second application process, does not mean that the injury to his concrete

interest in the license from the prior procedural violation has suddenly ended—he still does not

have the license. Nor would it negate the landowners’ injury to their interest in avoiding having a

federal facility next door if a second agency, with a separate duty to conduct an environmental

impact study, does conduct such a study—because the facility may still be built.

       Similarly, here, the alleged procedural violations stemming from CARRP continue to

injure plaintiffs’ concrete interests in travel, work, and maintenance of the marriage and family

unit, even if a second, separate adjudicatory body (the IJ) may not commit the same violation.

Plaintiffs’ concrete interests remain injured; Jafarzadeh still cannot travel or work, and indeed now



                                                 15
finds himself in removal proceedings, where the injury to his interests is even more acute. Cf.

Clinton v. City of New York, 524 U.S. 417, 430–31 (1998) (“Even if the outcome of [a] second

trial is speculative, the reversal [of a ruling in a defendant’s favor] . . . causes a significant

immediate injury by depriving the defendant of the benefit of a favorable final judgment.”). Unless

the IJ actually grants a renewed LPR application—thereby addressing the injury—plaintiffs retain

an injury in fact. 5

                               ii. Redressability

         The government also claims that any injury plaintiffs have received would not be

redressable because no relief is available. See 2d Mot. to Dismiss at 11–13.

         This is a case in which “the claimed injury arises from an alleged failure on the part of the

injury-causing party to adhere to a prescribed process in adjudicating the [plaintiff’s] substantive

rights, rather than from the substantive decision itself.” Spectrum Five LLC v. FCC, 758 F.3d

254, 264 n.10 (D.C. Cir. 2014). Plaintiffs challenge the allegedly illegal process—fueled by

CARRP—that USCIS used to adjudicate Jafarzadeh’s right to LPR status, rather than the merits

of USCIS’s ultimate determination.            Because Congress has “accorded [plaintiffs] a procedural

right to protect [their] concrete interests”—“here, the right to challenge [unlawful] agency action”

under the APA and Declaratory Judgment Act—plaintiffs “can assert that right without meeting

all the normal standards for redressability and immediacy.” Massachusetts v. EPA, 549 U.S. 497,

517–18 (2007) (citation omitted).           For plaintiffs to have standing, there need only be “some

possibility that the requested relief will prompt the injury-causing party to reconsider the decision



         5
          Plaintiffs also allege that Jafarzadeh is injured, or is imminently likely to be, because the government may
introduce evidence obtained through the CARRP process to oppose any renewed motion for adjustment of status
before the IJ. See 8 C.F.R. §§ 1240.7, 1240.11(a)(3). Given that plaintiffs have plausibly pled a procedural injury,
the Court need not determine whether this allegation—or the potential that Jafarzadeh could be subjected to a higher
burden of proof to show admissibility before the IJ, see 8 C.F.R. § 1240.8(b)—independently provides injury-in-fact.

                                                         16
that allegedly harmed the litigant.” Id. at 518. If plaintiffs are victorious in their suit here, they

will win a declaration that CARRP is unlawful and an order requiring the remand of Jafarzadeh’s

case from immigration court to DHS so that USCIS can reexamine Jafarzadeh’s application for

adjustment of status without reference to CARRP. See Am. Compl. at 13. There is certainly

“some possibility” that USCIS, faced with a court determination that CARRP is illegal and that it

must hew to the strictures of the INA, would come to a different conclusion about Jafarzadeh’s

application. This is enough to allege redressability, particularly at the motion-to-dismiss stage. 6

         The government sees things differently, claiming that the “Court lacks jurisdiction over the

type of relief Plaintiffs attempt to seek” because of § 1252(g). Reply at 5. But the question whether

relief is in fact available under federal law is not part of the redressability analysis. Rather, it is

part of the Rule 12(b)(6) inquiry into whether plaintiffs have a valid cause of action. As the

Supreme Court has explained, “the fundamental distinction between arguing no cause of action

and arguing no Article III redressability” is “that the former argument is not squarely directed at

jurisdiction itself, but rather at the existence of a remedy for the alleged violation of . . . federal

rights, which issue is not of the jurisdictional sort which the Court raises on its own motion.” Steel

Co., 523 U.S. at 96 (emphasis added) (citation and internal quotation marks omitted). So long as

plaintiffs allege some remedy that, were it granted, would create “some possibility”                                     of


         6
            The government argues that plaintiffs lack standing to seek equitable relief, because they do not plausibly
allege that they will appear again before USCIS seeking a different adjustment of status and therefore will be subject
to CARRP again. See 2d Mot. to Dismiss at 12–13. The government emphasizes City of Los Angeles v. Lyons, 461
U.S. 95 (1983), in which the Supreme Court found that a plaintiff who had been illegally choked by a police officer
lacked standing to seek an injunction against the city to prevent future police chokeholds because his past injury was
insufficient to show that he “was likely to suffer future injury from the use of the chokeholds by police officers,” id.
at 105. Here, however, plaintiffs do not allege an injury stemming from a single past event without “any continuing,
present adverse effects.” Id. at 102 (citation omitted). Rather, plaintiffs seek relief tethered to the ongoing injury that
USCIS’s alleged procedural violation inflicts on their concrete interests. And the relief they request—an order
requiring officials to perform specific tasks, and a concomitant declaration that an agency action is unlawful—are
common in administrative and constitutional cases with injuries similar to plaintiffs’. See, e.g., City of New York,
524 U.S. at 425 n.9; Massachusetts. v. EPA, 249 F. App’x 829, 829 (D.C. Cir. 2007). Hence, unlike in Lyons and the
cases it cites, which all involve past rather than ongoing injuries, here plaintiffs have standing to seek equitable relief.

                                                            17
“prompt[ing]” the government “to reconsider” its denial of Jafarzadeh’s LPR application, plaintiffs

will have plausibly pled redressability. Massachusetts, 549 U.S. at 518. This they have done.

Hence, as the text of Rule 12(b)(6) suggests, any assertion that § 1252 prohibits the Court from

granting the relief sought is properly addressed when analyzing whether plaintiffs have “state[d] a

claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6) (emphasis added); see Steel Co.,

523 U.S. at 89, 96; Hamdi ex rel. Hamdi v. Napolitano, 620 F.3d 615, 628 n.15 (6th Cir. 2010).

                   2. Standing for Separation of Powers Claim

       Plaintiffs assert that CARRP impermissibly intrudes on Congress’s sole authority to

“establish an uniform Rule of Naturalization.” U.S. Const. art. I, § 8, cl. 4; see Am. Compl. ¶¶ 55–

56. The government argues that plaintiffs lack standing to pursue this separation of powers claim,

because only Congress would be injured by such a violation. See 2d Mot. to Dismiss at 14. This

is an odd argument on the government’s part. History provides a list as long as one’s arm of cases

in which private parties alleged injuries sufficient to bring separation of powers claims—and,

indeed, often obtained relief.   See, e.g., Patchak v. Zinke, 138 S. Ct. 897, 903–04 (2018);

Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2083 (2015); NLRB v. Noel Canning, 134

S. Ct. 2550, 2557 (2014); Free Enter. Fund, 561 U.S. at 487, 513; City of New York, 524 U.S. at

430–33, 449; Morrison v. Olson, 487 U.S. 654, 670 (1988); Bowsher v. Synar, 478 U.S. 714, 721,

736 (1986); INS v. Chadha, 462 U.S. 919, 935–36, 959 (1983); Youngstown Sheet & Tube Co. v.

Sawyer, 343 U.S. 579, 582 (1952).

       The reason for this is clear. While Congress would certainly “suffer[] an[] invasion of a

legally protected interest as a result of” a violation of the Uniform Rule of Naturalization Clause,

2d Mot. to Dismiss at 14, it is not the constitutional violation alone that provides plaintiffs with

standing in separation of powers cases. Rather, that violation must itself cause a separate injury



                                                18
to a plaintiff’s interests, and it is that harm that provides standing to sue. In Patchak, for instance,

an allegedly unconstitutional statute forbade Patchak from suing to prevent the federal government

from taking a neighboring property—on which a Native American tribe wished to build a casino—

into trust. 138 S. Ct. at 903–04. The alleged separation of powers violation most directly affected

the federal judiciary rather than Patchak, as the statute at issue stripped the courts’ jurisdiction

over claims involving the fought-over property. Yet Patchak, who would be deprived of access to

the federal courts and might be forced to live near a casino because of the statute, had standing.

        The same principles apply here. At least two district courts in the past year have held that

plaintiffs have standing to claim that agencies violated the Uniform Rule of Naturalization Clause.

See Kirwa v. U.S. Dep’t of Def., 285 F. Supp. 3d 257, 273 (D.D.C. 2018); Wagafe v. Trump, No.

C17-0094-RAJ, 2017 WL 2671254, at *7 (W.D. Wash. June 21, 2017). Like Jafarzadeh and

Karami, the plaintiffs in those cases alleged that “they suffered injury from having to undergo

additional requirements not imposed by Congress.” Kirwa, 285 F. Supp. 3d at 273. Plaintiffs

allege that Jafarzadeh remains deprived of his rights to travel and work in this country, and Karami

of her right to maintain her family unit here. These injuries allegedly stem from Jafarzadeh being

subject to CARRP’s requirements, which assertedly go beyond those imposed by Congress. As in

Kirwa and Wagafe, then, plaintiffs have standing to bring their separation of powers claim.

            D. Statute of Limitations

        In a footnote in its reply brief—“a dangerous place to put an important point,” Sheikh v.

Republic of Sudan, 172 F. Supp. 3d 124, 131 (D.D.C. 2016)—the government asserts that,

“[i]nsofar as Plaintiffs argue that the ‘final agency action’ [being challenged] is the decision to

adopt CARRP, they are well past the statute of limitations to challenge that decision,” Reply at 11

n.5. The statute of limitations for claims against the federal government is set out at 28 U.S.C.



                                                  19
§ 2401(a): “[E]very civil action commenced against the United States shall be barred unless the

complaint is filed within six years after the right of action first accrues.” As both APA and

constitutional challenges are subject to § 2401(a), the government’s assertion could doom all of

plaintiffs’ claims. See Harris v. FAA, 353 F.3d 1006, 1009 (D.C. Cir. 2004) (APA claims); Impro

Prods., Inc. v. Block, 722 F.2d 845, 851 n.12 (D.C. Cir. 1983) (constitutional claims); see also

Spannaus v. U.S. Dep’t of Justice, 824 F.2d 52, 55 (D.C. Cir. 1987) (“The law of this circuit is

clear: the words ‘every civil action’ [in § 2401(a)] mean what they say.”).

       Normally, the government’s decision to wait until its second-round reply brief to raise the

statute of limitations issue would instead doom its own untimely argument. Statutes of limitations

are among the defenses that must be “affirmatively state[d]” when “responding to a pleading.”

Fed. R. Civ. P. 8(c)(1). The government did not mention § 2401(a) in its first motion to dismiss—

even though most of plaintiffs’ claims were the same—and did not raise the issue in its motion to

dismiss the amended complaint. As with other affirmative defenses, a defendant who does not

invoke the statute of limitations “at the first available opportunity, typically in filing his first

responsive pleading or motion to dismiss, has presumptively forfeited that right.” Zuckerman

Spaeder, LLP v. Auffenberg, 646 F.3d 919, 922 (D.C. Cir. 2011). And in any event, “hiding an

argument [in a footnote] and then articulating it in only a conclusory fashion results in forfeiture.”

CTS Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014).

       However, the D.C. Circuit “has long held”—for at least thirty-five years, see Walters v.

Sec’y of Def., 725 F.2d 107, 112 n.12 (D.C. Cir. 1983)—“that section 2401(a) creates ‘a

jurisdictional condition attached to the government’s waiver of sovereign immunity,’” P & V

Enters. v. U.S. Army Corps of Eng’rs, 516 F.3d 1021, 1026 (D.C. Cir. 2008) (quoting Spannaus,

824 F.2d at 55). Under this reading, the statute of limitations “must be strictly construed” to limit



                                                 20
exceptions, Spannaus, 824 F.2d at 55, and cannot be forfeited—indeed, it must be raised by the

Court sua sponte if the parties neglect it, see Hamer v. Neighborhood Hous. Servs. of Chi., 138 S.

Ct. 13, 17 (2017).

         In light of Supreme Court decisions, several judges in this district have recently questioned

the D.C. Circuit’s cases holding § 2401(a) to be jurisdictional. See, e.g., Burt Lake Band of Ottawa

& Chippewa Indians v. Zinke, 304 F. Supp. 3d 70, 75 (D.D.C. 2018) (collecting cases);

Appalachian Voices v. McCarthy, 989 F. Supp. 2d 30, 44 n.5 (D.D.C. 2013). The D.C. Circuit

itself has also raised the issue several times but has avoided revisiting Spannaus and its other

precedents, either because the parties did not question them or because it found that the issue was

not dispositive. See Mendoza v. Perez, 754 F.3d 1002, 1018 n.11 (D.C. Cir. 2014); P & V Enters.,

516 F.3d at 1027; Felter v. Kempthorne, 473 F.3d 1255, 1260 (D.C. Cir. 2007); Harris, 353 F.3d

at 1013 n.7; see also Steel Co., 523 U.S. at 91 (warning that “drive-by jurisdictional rulings of this

sort . . . have no precedential effect”). As neither the Supreme Court nor the D.C. Circuit has

explicitly abrogated those precedents, the Circuit’s original conclusion remains binding on this

Court and must be followed “until the D.C. Circuit addresses it in the first instance.”

Mdewakanton Sioux Indians of Minn. v. Zinke, 264 F. Supp. 3d 116, 130 n.21 (D.D.C. 2017). 7


         7
            The Court notes, however, that the Circuit’s precedents on this matter are questionable given intervening
Supreme Court decisions. Spannaus’s holding is premised on the idea that § 2401 is “attached to the government’s
waiver of sovereign immunity, and as such must be strictly construed.” 824 F.2d at 55. However, in a long line of
cases, the Supreme Court has replaced the presumption upon which Spannaus relied with an opposing one: that
“[s]tatutes of limitations and other filing deadlines ‘ordinarily are not jurisdictional’” and that a limitations period
should be treated “as jurisdictional only if Congress has ‘clearly stated’ that it is.” Musacchio v. United States, 136
S. Ct. 709, 716–17 (2016) (citations omitted). Even a cursory examination of “the ‘text, context, and relevant historical
treatment’ of the provision at issue,” id. at 717 (citation omitted), shows rather clearly that § 2401(a) is non-
jurisdictional. A comparison to United States v. Kwai Fun Wong, 135 S. Ct. 1625 (2015), in which the Court held the
neighboring statute of limitations, § 2401(b), to be non-jurisdictional, see id. at 1633, is helpful in such an analysis.
         To begin with, § 2401(a)’s “text speaks only to a claim’s timelines, not to a court’s power.” Id. at 1632. It
states simply that a “civil action commenced against the United States shall be barred unless the complaint is filed
within six years.” 28 U.S.C. § 2401(a). Like § 2401(b), § 2401(a) “does not speak in jurisdictional terms”: it neither
“define[s] a federal court’s jurisdiction over [civil] claims generally” nor “address[es] its authority to hear untimely
suits.” Kwai Fun Wong, 135 S. Ct. at 1633 (emphases added). True, the text bars “civil actions,” while § 2401(b)
bars “claims.” But that difference in language does not transform a non-jurisdictional statute into a jurisdictional one.

                                                          21
         Nevertheless, plaintiffs’ claims are timely.              The statute of limitations on civil actions

against the government begins to run when “the right of action first accrues.” 28 U.S.C. § 2401(a).

When challenging agency activity, “the ‘right of action first accrues on the date of the final agency

action.’” Hardin v. Jackson, 625 F.3d 739, 743 (D.C. Cir. 2010) (quoting Harris, 353 F.3d at

1010). Still, Count III, plaintiffs’ substantive APA claim, is not barred. So long as a plaintiff has

standing, D.C. Circuit “case law makes it clear that ‘[a]n agency’s regulations may be attacked . . .

once the statutory limitations period has expired . . . on the ground that the issuing agency acted in

excess of its statutory authority in promulgating them.’” Genuine Parts Co. v. EPA, 890 F.3d 304,

316 (D.C. Cir. 2018) (alteration in original) (quoting NLRB Union v. FLRA, 834 F.2d 191, 195

(D.C. Cir. 1987)); see Am. Scholastic TV Programming Found. v. FCC, 46 F.3d 1173, 1178 n.2

(D.C. Cir. 1995) (suggesting such challenges may be brought in “nonenforcement proceedings




See, e.g., Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 163, 169 (2010) (finding non-jurisdictional a statute of
limitations that said “no civil action . . . shall be instituted” outside the time limits); Owens v. Republic of Sudan, 864
F.3d 751, 803 (D.C. Cir. 2017) (noting that courts have not “attached jurisdictional significance to the word ‘action’”).
Nothing in the text of § 2401(a) meets the Court’s clear statement requirement.
         Likewise, context points strongly against a jurisdictional reading. The Court “has often explained that
Congress’s separation of a filing deadline from a jurisdictional grant indicates that the time bar is not jurisdictional.”
Kwai Fun Wong, 135 S. Ct. at 1633; see, e.g., Reed Elsevier, 559 U.S. at 164. Such is the case here. As with
§ 2401(b), whose related jurisdictional grant is housed in a separate provision, see Kwai Fun Wong, 135 S. Ct. at
1633, § 2401(a)’s statute of limitations is separate from the general jurisdictional grant for civil cases against the
federal government, see 28 U.S.C. § 1346(a)(2). As neither § 1346(a)(2) nor § 2401(a) conditions jurisdiction on the
limitations period, “[t]reating § 2401[(a)]’s time bars as jurisdictional would . . . disregard the structural divide built
into the statute.” Kwai Fun Wong, 135 S. Ct. at 1633.
         Finally, the history of the statute does not contradict what these other sources suggest. Section 2401(a) was
derived from the Little Tucker Act, which once shared a statute of limitations with the Big Tucker Act, see Herr v.
U.S. Forest Serv., 803 F.3d 809, 817 (6th Cir. 2015)—a law whose statute of limitations is jurisdictional, see John R.
Sand & Gravel Co. v. United States, 552 U.S. 130, 132–34 (2008). But in 1948, Congress altered the Little Tucker
Act’s statute of limitations in ways that severed it from its roots: Congress separated the limitations period from the
corresponding jurisdictional grant, and broadened the statute of limitations from a targeted one focused on small-
dollar damages actions to a general one that controlled all civil actions. See Herr, 803 F.3d at 817 (citation omitted).
Congress’s actions indicate that it intended § 2401(a) to act as a “standard”—and thus non-jurisdictional—statute of
limitations. Id.; see Walters, 725 F.2d at 113. Hence, text, structure, and history all point against a jurisdictional
reading of § 2401(a). Given the Supreme Court’s clear strictures on this issue, which have undermined the foundations
of Spannaus and similar cases, the D.C. Circuit ought to reconsider its § 2401(a) precedents.

                                                           22
where the party is nevertheless harmed by application of the regulation”). 8                      As the same rule

applies to constitutional challenges to agency action, see, e.g., Graceba Total Commc’ns, Inc. v.

FCC, 115 F.3d 1038, 1040 (D.C. Cir. 1997); JEM Broad. Co. v. FCC, 22 F.3d 320, 325 (D.C. Cir.

1994), Count II—plaintiffs’ claim that CARRP violates Article I, Section 8 and the separation of

powers—is also timely.

         But what about plaintiffs’ procedural APA claim (Count V)? Unlike claims of substantive

invalidity, “challenges to the procedural lineage of agency regulations,” whatever the context in

which they are brought, “will not be entertained outside the” limitations period. JEM Broad. Co.,

22 F.3d at 325.        And what of Karami’s as-applied due process claim (Count IV)? 9 If the

government began subjecting Jafarzadeh’s application to CARRP soon after he filed it, Karami’s

claim may have arisen more than six years before this suit was filed. However, application of the

discovery rule renders even these claims timely. Under that rule, “a cause of action accrues when

the injured party discovers—or in the exercise of due diligence should have discovered—that it

has been injured.” Hardin, 625 F.3d at 743 (citation omitted); see Merck & Co. v. Reynolds, 559

U.S. 633, 646 (2010). Similarly, the D.C. Circuit has “recognized exceptions to the limitations

period when agency action fails to put aggrieved parties on reasonable notice of the rule’s content.”

JEM Broad. Co., 22 F.3d at 326; see RCA Glob. Commc’ns, Inc. v. FCC, 758 F.2d 722, 730 (D.C.

Cir. 1985) (“[S]elf-evidently the calendar does not run until the agency has decided a question in

a manner that reasonably puts aggrieved parties on notice of the rule’s content.”).


         8
           A recent D.C. Circuit case, Washington Alliance of Technology Workers v. DHS, 892 F.3d 332, 342 (D.C.
Cir. 2018), dismissed on statute of limitations grounds a claim that a DHS program, promulgated through an old rule,
exceeded DHS’s statutory authority. However, dismissal of that claim did not ultimately matter to the court’s analysis,
because passage of a newer rule left the statutory authority question on the table. See id. Perhaps for that reason, the
court did not acknowledge or grapple with the many other D.C. Circuit decisions allowing such claims to be heard
outside the limitations period. See id.
         9
           Since Count I does not plead a separate basis of liability but rather asks only for a particular remedy, see
infra Part II, the statute of limitations issue is ultimately irrelevant to that count.

                                                          23
         Plaintiffs allege that CARRP was a secret program when it was enacted in 2008. See Am.

Compl. ¶ 29. In fact, CARRP was unknown to anyone outside the government until it was

discovered in a court case that was filed in 2010 and decided in 2012, and USCIS released no

details about CARRP to the public until it was forced to respond to Freedom of Information Act

(FOIA) requests and litigation beginning in 2012. Wagafe, 2017 WL 2671254, at *1 (citing ACLU

of S. Cal. v. USCIS, 133 F. Supp. 3d 234, 238 (D.D.C. 2015), and Hamdi v. USCIS, No. EDCV

10-894 VAP (DTBx), 2012 WL 632397 (C.D. Cal. Feb. 25, 2012)). 10 As plaintiffs allege that

applicants are never told that they are subjected to CARRP, Am. Compl. ¶ 39, both their complaint

and common sense suggest that plaintiffs did not discover Jafarzadeh’s subjection to CARRP

before the program became public. Nor does the government claim in its sentence-long footnote

raising the statute of limitations that plaintiffs could have discovered their CARRP-related injury

through due diligence prior to CARRP’s disclosure. Thus, under the discovery rule, plaintiffs’

claims did not accrue until at least 2012. Counts IV and V, like the rest of the amended complaint,

are therefore timely. 11 Hence, the Court will deny the motion to dismiss under Rule 12(b)(1).




        10
           It appears that CARRP’s first exposure to the general public, beyond those involved with Hamdi and the
2012 FOIA requests, came in an August 2013 report issued by the ACLU of Southern California in concert with the
Lawyer’s Committee for Civil Rights of the San Francisco Bay Area and Mayer Brown. See Jennie Pasquarella,
Muslims Need Not Apply (Aug. 2013), https://www.aclusocal.org/sites/default/files/carrp-muslims-need-not-apply-
aclu-socal-report.pdf; Miriam Jordan, Citizenship Agency Faulted Over Delays for Muslim Applicants, Wall St. J.
(Aug. 21, 2013, 1:07 AM), https://www.wsj.com/articles/citizenship-agency-faulted-over-delays-for-muslim-
applicants-1377061643. However, the Court will assume that the clock started with the 2012 FOIA responses.
         11
           The D.C. Circuit has explicitly left open the question whether the discovery rule applies to actions subject
to § 2401(a), or to procedural challenges to agency action. See Hardin, 625 F.3d at 743. However, the Supreme Court
has held several times that “limitations principles should generally apply to the Government ‘in the same way that’
they apply to private parties.” Scarborough v. Principi, 541 U.S. 401, 421 (2004) (citation omitted). Even hewing to
the D.C. Circuit’s baseline that § 2401(a) is jurisdictional, that determination can and should be read in harmony with
these more recent Supreme Court cases. The Court will not cut off the discovery rule in suits with government
defendants when it would apply in suits against private defendants.

                                                         24
    II.        CLAIM   FOR USCIS DECIS ION EXCLUS IVE OF CARRP (COUNT I)

           Plaintiffs’ first claim is not really a claim at all. Rather, Count I of the amended complaint

asks for a “decision by USCIS exclusive of CARRP.” Am. Compl. at 10. It alleges that Jafarzadeh

has met all of the statutory requirements to become an LPR, but that USCIS unlawfully refused to

exercise its discretion in deciding on his application and instead delegated its authority to the FBI

through the TSDB. Id. ¶¶ 51–52. It also states that Jafarzadeh has exhausted all other avenues for

relief. Id. ¶ 53. These allegations are essentially the same ones that undergird Counts II and III,

the separation of powers and substantive APA claims. See id. ¶¶ 54–59. No separate legal basis

for liability is mentioned in Count I; the claim appears merely to request a particular form of relief

that is also included in the Prayer for Relief. Therefore, Count I will be dismissed.


    III.       SEPARATION    OF POWERS    CLAIM (COUNT II)

           Plaintiffs allege that “CARRP violates the separation of powers” because “only Congress

has the authority to ‘establish an uniform Rule of Naturalization.” Am. Compl. ¶ 55 (quoting U.S.

Const. art. I, § 8, cl. 4). According to the complaint, “CARRP creates additional, secret, non-

statutory, substantive criteria that applicants must meet before USCIS will grant an application for

adjustment of status.” Id. ¶ 56. CARRP allegedly allows USCIS to skirt Congress’s determination

of which national security concerns warrant a finding of inadmissibility by defining “national

security concerns” more broadly, and flouts Congress’s decision to give DHS exclusive statutory

authority over adjustment of status applications by delegating authority to other agencies to

predetermine who should be denied. Id. Plaintiffs claim that these illegal flaws in the CARRP

program caused the delay and denial of Jafarzadeh’s LPR application. Id. ¶ 57.

           The government’s motion to dismiss focuses on plaintiffs’ standing to bring this separation

of powers claim. But the government (briefly) makes a feint toward a merits argument as well.


                                                    25
See 2d Mot. to Dismiss at 13–14. The Court need not respond to each of the government’s

assertions, because plaintiffs’ concerns are better addressed by another count of their complaint.

Cf. Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) (“[I]f a

case can be decided on either of two grounds, one involving a constitutional question, the other a

question of statutory construction or general law, the Court will decide only the latter.”). In stating

that CARRP casts a wider net than does the INA, and delegates authority to agencies to which the

INA did not grant such power, plaintiffs are claiming that CARRP is inconsistent with a statute.

This is a classic APA claim. See 5 U.S.C. § 706(2)(C) (compelling courts to “hold unlawful and

set aside agency action” that is “in excess of statutory jurisdiction, authority, or limitations, or

short of statutory right”). The specifics of plaintiffs’ allegations are a far better fit for this doctrinal

box than they are for a constitutional one. Moreover, judging the constitutionality of action taken

by a coequal branch of government is “the gravest and most delicate duty that this Court is called

on to perform.” Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 204 (2009) (citation

omitted). The Court must take care not to transform every claim that an agency action conflicts

with a statute into a freestanding separation of powers claim. Hence, the Court will dismiss Count

Two of plaintiffs’ amended complaint. As plaintiffs allege in their substantive APA claim the

same infirmities that underlie their separation of powers claim, the Court will be able to consider

the allegations fully in that context.

    IV.      SUBS TANTIVE APA CLAIM (COUNT III)

          Plaintiffs next claim that the denial of Jafarzadeh’s LPR application “was an arbitrary and

capricious agency action because CARRP is not in accordance with law, is contrary to the

Constitution, and abdicates responsibility to apply (not create) the immigration laws.” Am. Compl.




                                                    26
¶ 59. 12 The government challenges this substantive APA claim solely by arguing that CARRP is

not a final agency action, but rather “an administrative application handling protocol.” 2d Mot. to

Dismiss at 16. The Court must therefore determine whether the CARRP memo—now provided to

the Court—is an action that (1) “mark[s] the ‘consummation’ of the agency’s decisionmaking

process,” rather than being “tentative or interlocutory”; and (2) is “one by which ‘rights or

obligations have been determined,’ or from which ‘legal consequences will flow.’” Bennett v.

Spear, 520 U.S. 154, 177–78 (1997) (citations omitted).

         The first of these requirements is certainly met. The government argues that CARRP does

not “mark the consummation of USCIS’s decision-making process on any individual immigration

benefit application.” 2d Mot. to Dismiss at 16. But this is beside the point. Plaintiffs challenge

the 2008 memorandum creating the CARRP program, and this memorandum clearly represents

the consummation of the agency’s decision-making on the question of how to handle applications

of individuals with national security concerns. The “memorandum outlines USCIS policy for

identifying and processing cases with national security (NS) concerns,” and it explicitly “rescinds

existing policy memoranda pertaining to reporting and resolving NS concerns.” Memorandum

from Jonathan R. Scharfen, Deputy Dir., USCIS, to Field Leadership (Apr. 11, 2008) (“CARRP

Mem.”) [ECF No. 33-1] at 1. 13 These formal, definite acts were taken by the Deputy Director of

USCIS, under a regime which allows the Secretary of Homeland Security to delegate regulatory


         12
            There is an argument to be made that this claim cannot stand as currently formulated, because it treats the
denial itself, rather than CARRP, as the arbitrary and capricious—and thus invalid—agency action. The Court has
already held that it lacks jurisdiction to review USCIS’s denial of Jafarzadeh’s LPR application, and that such a
decision does not constitute final agency action reviewable under the APA. See Mem. Op. at 11–12. However, the
Court treated an identical substantive APA claim in the original complaint as challenging CARRP rather than the
denial itself, id. at 9, 22, and the government treats the claim that way in its current motion to dismiss, see 2d Mot. to
Dismiss at 14–18. Given that the Court must “grant[] plaintiff the benefit of all inferences that can reasonably be
derived from the facts alleged,” Sickle, 884 F.3d at 345 (alterations and citations omitted), the Court still reads the
substantive APA claim in plaintiffs’ amended complaint as challenging CARRP.
         13
         Exhibit 1 to the government’s reply [ECF No. 33-1] contains a number of USCIS memoranda pertaining
to CARRP. For clarity’s sake, the Court will refer to the pagination of the exhibit rather than of each memorandum.

                                                           27
power to him—all signs that CARRP meets the first Bennett prong. See 8 U.S.C. § 1103(a)(4); 8

C.F.R. § 2.1; Soundboard Ass’n v. FTC, 888 F.3d 1261, 1267 (D.C. Cir. 2018). While the CARRP

policy would only be “effective upon issuance of each directorate’s respective guidance”

documents implementing the policy, CARRP Mem. at 2, any finality concerns evaporated when

those guidance documents were in fact issued in 2008, see Memorandum from Michael Ayters,

Acting Deputy Dir., USCIS, to Field Leadership (Feb. 6, 2009) (“Addt’l Guidance”) [ECF No. 33-

1] at 30 & n.3. Thus, “the impact of the order is sufficiently ‘final’ to warrant review in the context

of th[is] particular case.” Friedman v. FAA 841 F.3d 537, 542 (D.C. Cir. 2016) (citation omitted).

       The government concentrates on the second Bennett prong, claiming that no legal

consequences flow from CARRP because it “does not change the statutory requirements for any

immigration benefit . . . and does not mandate the outcome of any individual case.” 2d Mot. to

Dismiss at 17. But there are significant indications from the CARRP memo itself that it creates

the legal consequences necessary to be considered final agency action. To start, the general

language of CARRP suggests that it is binding as a practical matter. CARRP is “a document issued

at headquarters [that] is controlling in the field.” Appalachian Power Co. v. EPA, 208 F.3d 1015,

1021 (D.C. Cir. 2000). Field officers are bound to follow the procedures and substantive standards

CARRP lays out. An NS determination “requires that the case be handled in accordance with

CARRP policy.” CARRP Mem. at 1 n.1 (emphasis added). Once an application is subject to

CARRP, the policy states in specific terms what field officers “must” do and what they are “not

authorized” to do. See, e.g., id. at 4 (“When a Non-KST indicator has been identified, the officer

must then analyze the indicator in conjunction with the facts of the case . . . and determine whether

an articulable link exists [to a prohibited activity, individual, or organization].” (emphasis added));

id. at 6 (“Officers are not authorized to approve applications with confirmed Non-KST NS



                                                  28
concerns without supervisory approval and concurrence . . . .” (emphasis added)). As to the field

officers at least, “[i]t commands, it requires, it orders, it dictates.” Appalachian Power Co., 208

F.3d at 1023. Officers must “base[] enforcement actions”—their decisions on applications for

adjustment of status—“on the policies or interpretations formulated in the document.” Id. at 1021.

Nor, in contrast to at least one of USCIS’s later-issued CARRP guidance memos, does the original

memo include boilerplate language stating that it “is intended solely for the guidance of USCIS

personnel” and “may not[] be relied upon to create any right or benefit, substantive or procedural.”

USCIS Mem. on Revision of Responsibilities for CARRP Cases Involving Known or Suspected

Terrorists (“Revision Mem.”) (July 26, 2011) [ECF No. 33-1] at 58; see also Appalachian Power

Co., 208 F.3d at 1022–23 (rejecting argument that similar boilerplate rendered a guidance

document nonfinal, as the document still created obligations).

       The CARRP memo suggests that legal consequences flow from it for those subject to

CARRP adjudication, as well. For instance, as plaintiffs allege, CARRP classifies those on the

TSDB who meet certain criteria as KSTs, see Am. Compl. ¶ 31; CARRP Mem. at 1 n.3, thus

subjecting them all to CARRP’s increased screening requirements. If a KST national security

concern is confirmed through vetting, an application for immigration benefits cannot be approved

except by senior leadership—even if the application would otherwise warrant approval. See

CARRP Mem. at 7; Revision Mem. at 57. These sorts of mandates both restrict agency activities

that previously involved greater discretion, see Scenic Am., Inc. v. U.S. Dep’t of Transp., 836 F.3d

42, 56 (D.C. Cir. 2016), cert. denied, 138 S. Ct. 2 (2017), and create legal consequences for

regulated parties, see Wagafe, 2017 WL 2671254, at *10.

       Most importantly, CARRP’s definition of “national security concern” covers any

“articulable link” to “involvement in” or “association with” an entity or activity that would qualify



                                                 29
for inadmissibility under 8 U.S.C. § 1182(a)(3)(A)–(B), (F).         See CARRP Mem. at 1 n.1.

However, § 1182 itself seems to set the inadmissibility standard higher, requiring definitive

knowledge that an alien has affiliated with a terrorist organization or has engaged in certain

terrorist activities. 8 U.S.C. § 1182(a)(3)(B), (F). In some instances, an application can be denied

under the INA if there are at least “reasonable grounds to believe” that an alien “is engaged in,”

“seeks to enter the United States to engage” in, or “is likely to engage” in prohibited espionage or

terrorist activities. Id. § 1182(a)(3)(A), (B)(i)(II). Still, CARRP’s standard appears to be broader

than the statutory one. Changing the standards for denial undoubtedly alters the legal landscape.

       Perhaps legal consequences would not flow if CARRP’s “articulable link” standard applied

only when determining how wide to cast CARRP’s net in the first instance, with the INA’s

inadmissibility standard ultimately determining who is denied. But see Am. Compl. ¶ 35 (alleging

that all applications placed in the CARRP process are “steered towards one of two outcomes: delay

or denial”). However, the “articulable link” standard does not appear to serve merely as a proxy

triggering CARRP review. Rather, an articulable link to activities, individuals, or organizations

described in 8 U.S.C. § 1182(a)(3)(A)–(B), (F) appears to remain the touchstone throughout the

vetting and adjudication process. See CARRP Mem. at 5 (requiring officers who are conducting

external vetting of non-KST NS concerns to “obtain[] from the record owner facts and fact patterns

to be used in confirming whether an articulable link exists” between the applicant and a prohibited

entity or activity); id. at 1 n.1, 6–7 (warning officers that they “are not authorized to approve

applications with confirmed” KST or non-KST “NS concerns” on their own, and defining “NS

concern” for purposes of the memorandum using the “articulable link” standard).

       There is some indication to the contrary among the other CARRP materials submitted to

the Court, but not of a clear enough nature to conclude that plaintiffs have failed to state a claim.



                                                 30
A later guidance memo does tell officers that—at least for those with non-KST NS concerns—

“[a]ny denial, referral, or Notice of Intent to Deny (NOID) an application or petition with NS

concerns must be based on statutory or regulatory grounds of ineligibility that can be cited in a

decision.” Addt’l Guidance at 34. But more recent guidance implies that there is a difference

between the “articulable link” standard for NS concerns and the INA’s inadmissibility standards,

and outlines a process for adjudicating KST cases that is at least consistent with plaintiffs’ claim

that CARRP is geared toward finding a way to deny applications. See Revision Mem. at 2 (“[I]f,

after completing the vetting and deconfliction process in KST cases, there continue to be national

security concerns, and there is insufficient evidence or other grounds to deny the application,

offices are to seek further guidance from their respective HQ Directorate, in consultation with local

and HQ counsel when appropriate.”); USCIS Operational Guidance for Vetting and Adjudicating

Cases with Nat’l Sec. Concerns [ECF No. 33-1] at 30 (“If there are remaining KST NS concerns

after receipt of the results from HQFDNS/BCAU, and the individual remains eligible for the

benefit, the application/petition must be returned to the respective Field HQ component for further

evaluation and coordination with HQFDNS.” (footnote omitted)). At this stage, the Court must

accept plaintiffs’ allegations regarding CARRP as true unless the record before the Court squarely

disproves it. And, as explained, the CARRP materials themselves provide some support for

plaintiffs’ reading of the original CARRP memo and policy.                      Thus, plaintiffs have plausibly

claimed that CARRP meets Bennett’s test for final agency action and is subject to the APA. 14

         Other than its bare assertion that CARRP “does not change the statutory requirements for

any immigration benefit,” 2d Mot. to Dismiss at 17—a statement that is also central to the final


         14
           Defendants also point to the rule that the APA’s “final agency action” requirement prohibits “broad
programmatic attacks” on the administration of a program. Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004)
(quoted in 2d Mot. to Dismiss at 17). But here plaintiffs point to a discrete agency action: the memorandum instituting
CARRP.

                                                         31
agency action question—the government does not argue that CARRP affirmatively complies with

the Constitution and the INA. The Court will therefore deny the motion to dismiss Count III and

defer that merits question to a later stage. See Fed. R. Civ. P. 12(h)(2) (allowing defendants to

raise failure to state a claim defenses in later motions or at trial). The Court’s ultimate decision on

plaintiffs’ substantive APA claim may depend on several issues which are simply not discussed in

the papers before the Court. For instance, the strength of plaintiffs’ claim may depend on whether

and how much the Court must defer to DHS’s interpretation of the INA’s inadmissibility standards

or of its own memo; whether individuals are submitted to the TSDB, and therefore subjected to

CARRP, “even if there is no reasonable suspicion that the person is actually involved in terrorist

activity,” Am. Compl. ¶ 34; and whether CARRP’s eligibility assessment process “lead[s] to

pretextual denials that lack a legitimate basis in fact and law,” id. ¶ 35. Given the limited argument

in the briefs, the question whether CARRP is contrary to the INA will be left for another day.

       The final element of the APA cause of action that the government has addressed is the

availability of a remedy. The APA’s waiver of sovereign immunity is limited by Congress’s

directive “that nothing in the APA ‘confers authority to grant relief if any other statute that grants

consent to suit expressly or impliedly forbids the relief which is sought.’” Spectrum Leasing Corp.

v. United States, 764 F.2d 891, 892–93 (D.C. Cir. 1985) (quoting 5 U.S.C. § 702). Thus, if another

statute permits suit against the government for the claims being brought but limits the forms of

relief available, there is no APA cause of action.

       The government notes that, while plaintiffs do not explicitly ask for an injunction to

terminate removal proceedings, the relief plaintiffs do seek—a declaration that CARRP is unlawful

and a remand to USCIS for reexamination of Jafarzadeh’s LPR application free of CARRP—

functionally requires such an injunction to have any effect. 2d Mot. to Dismiss at 11. DHS has



                                                  32
the ability to request, and the IJ the power to grant at DHS’s request, termination of the removal

proceedings or remand to USCIS. See 8 C.F.R. §§ 239.2(c)–(d), 1239.2(c)–(d), 1240.1(a)(iv),

1240.12(c). However, the government claims that any injunction requiring it to terminate removal

proceedings would fall afoul either of 8 U.S.C. § 1252(a)(2)(B), which strips courts of jurisdiction

to “review” decisions within DHS’s discretion, or of § 1252(g), which strips courts of jurisdiction

to hear claims arising from certain enforcement decisions. If this is the case, it must be news to

the other courts that have already developed and applied standards by which certain agency errors

will lead them to terminate removal proceedings. See, e.g., Rajah, 544 F.3d at 446–47. And that

is because the government’s assertion does not hold water.

       Although § 1252(g) does not strip the courts of jurisdiction over Jafarzadeh’s claims, the

government nevertheless argues that § 1252(g) strips the Court of jurisdiction to grant a remedy

that would interfere with removal proceedings.       See 2d Mot. to Dismiss at 11–12. But this

distinction is “slicing the baloney mighty thin.” Sessions v. Dimaya, 138 S. Ct. 1204, 1215 (2018).

The language of § 1252(g) does not restrict—or even reference—remedies. It limits only the

“cause[s] or claim[s]” over which courts have jurisdiction. 8 U.S.C. § 1252(g). If a “cause or

claim” is not barred by the text of § 1252(g), it is unclear why § 1252(g) would nevertheless bar a

court from issuing a remedy to resolve that claim. See, e.g., Coleman v. United States, 454 F. Supp.

2d 757, 765–66 (N.D. Ill. 2006). Section 1252(a)(2)(B), meanwhile, only cuts off “review” of

decisions that the INA commits to “the discretion of the Attorney General or the Secretary of

Homeland Security.” 8 U.S.C. § 1252(a)(2)(B). It does not purport to eliminate remedies for

claims over which the courts have jurisdiction. And the only decision under review here is the




                                                33
decision to adopt CARRP, which plaintiffs allege falls outside the discretion the INA grants. 15

Therefore, these provisions do not expressly limit plaintiffs’ available remedies.

         Of course, § 1252 might still impliedly forbid injunctive relief.                      See 5 U.S.C. § 702

(denying relief “if any other statute that grants consent to suit . . . impliedly forbids the relief which

is sought”). But “[w]hen a statute ‘is not addressed to the type of grievance which the plaintiff

seeks to assert,’ then the statute cannot prevent an APA suit.” Match-E-Be-Nash-She-Wish Band

of Pottawatomi Indians v. Patchak, 567 U.S. 209, 216 (2012) (citation omitted). Section 1252 is

addressed to grievances related to removal orders and certain discretionary decisions. See 8 U.S.C.

§ 1252. It is not addressed to grievances regarding a mandatory agency policy that applies prior

to and outside the removal process. Hence, § 1252 does not impliedly bar relief here.

         Indeed, § 1252(f)(1), which the government does not mention, supports the idea that a court

could enjoin removal proceedings in some cases. Section 1252(f)(1) is styled a “[l]imit on

injunctive relief,” and in sweeping terms strips all courts but the Supreme Court of “authority to

enjoin or restrain the operation” of certain provisions of the INA “[r]egardless of the nature of the

action or claim.” 8 U.S.C. § 1252(f)(1). The set of provisions brought within the section’s ambit

includes those governing the initiation and conduct of removal proceedings. See id. §§ 1229,

1229a, 1252(f)(1). Crucially, however, the section carves out from this ban injunctions “with

respect to the application of such provisions to an individual alien against whom proceedings under

such part have been initiated.” Id. § 1252(f)(1). Jafarzadeh fits this bill: his removal proceedings

have been initiated, and the required injunction would apply only with respect to the application


         15
            Nor for that matter does § 1252(b)(9), which channels to the circuit courts “[j]udicial review of all questions
of law and fact . . . arising from any action taken or proceeding brought to remove an alien from the United States,”
cut off relief here. None of the remedies plaintiffs seek would circumvent the administrative process § 1252(b)(9)
sets up. Cf., e.g., Hamdi, 620 F.3d at 626 (dismissing case because “§ 1252(b)(9) does operate to preclude the district
court from providing the particular relief that Hamdi seeks—judicial review of his mother’s order of removal and
cancellation of that order”).

                                                           34
of the removal provisions to him. Thus, § 1252(f)(1) confirms that § 1252 does not limit plaintiffs’

cause of action under the APA. The motion to dismiss Count III will accordingly be denied.

    V.      NOTICE-AND-COMMENT CLAIM (COUNT V)

         Plaintiffs also claim that CARRP is a legislative rule subject to notice and comment, and

that the CARRP memorandum is procedurally invalid because it did not go through notice-and-

comment rulemaking. See Am. Compl. ¶¶ 66–70. The government responds that CARRP is a

“rule of agency procedure or practice,” and thereby exempt from the APA’s notice-and-comment

requirement. See 2d Mot. to Dismiss at 19.

         The APA generally requires agencies to publish proposed rules in the Federal Register and

seek public comment before settling on a final version. See 5 U.S.C. § 553(b)–(c). However,

these requirements do not apply “to interpretative rules, general statements of policy, or rules of

agency organization, procedure, or practice.” Id. § 553(b)(A). The government invokes the

exception for “rules of agency organization, procedure, or practice”—or, as the D.C. Circuit refers

to such actions, “procedural rules.” Elec. Privacy Info. Ctr. (EPIC) v. DHS, 653 F.3d 1, 5 (D.C.

Cir. 2011). Unlike a legislative rule, a procedural rule “does not itself ‘alter the rights or interests

of parties’” or “impose new substantive burdens.” Id. (citations omitted). Of course, a procedural

rule may still have a “substantial impact” upon those it regulates. Id. The operative question is

“whether the substantive effect is sufficiently grave so that notice and comment are needed to

safeguard the policies underlying the APA.” Id. at 5–6 (citation omitted). The procedural rule

exception “must be narrowly construed.” Id. at 6 (citation omitted).

         The government argues that CARRP is merely a procedural rule because it is “simply part

of USCIS’s vetting process,” 2d Mot. to Dismiss at 20, and thus “merely provides guidance to

[USCIS] officials in exercising their discretionary power,” id. (quoting Colwell v. HHS, 558 F.3d



                                                  35
1112, 1124 (9th Cir. 2009)). However, for the same reasons why they have stated a claim that

CARRP is a final agency action, see supra Part IV, plaintiffs plausibly allege that CARRP goes

beyond mere guidance. Plaintiffs assert that CARRP effectively mandates denials for aliens who

meet specified criteria. Taking plaintiffs’ alleged facts as true—as the Court must at this stage—

CARRP does not “genuinely leave[] the agency and its decisionmakers free to exercise discretion,”

which points toward requiring notice and comment. Cmty. Nutrition Inst. v. Young, 818 F.2d 943,

946 (D.C. Cir. 1987).

       Relatedly, CARRP allegedly alters some aliens’ legal rights and imposes new burdens on

them. “A rule is legislative if it supplements a statute, adopts a new position inconsistent with

existing regulations, or otherwise effects a substantive change in existing law or policy.”

Mendoza, 754 F.3d at 1021. That is exactly what plaintiffs allege that CARRP does: it broadens

statutory criteria of national security dangerousness, and allows other agencies to exercise a degree

of power over applications that runs counter to Congress’s decision in the INA to rest such power

at the feet of DHS. At least as to the first of these allegations, there is some evidence in the CARRP

memorandum itself that CARRP may sweep more broadly than does the INA. See supra Part IV.

The government, understandably, contests this. It claims that the CARRP memorandum tells

officers to adjudicate applications under the program “consistent[ly] with the criteria for

adjustment” in the INA. 2d Mot. to Dismiss at 20. But plaintiffs plausibly assert that the CARRP

memorandum’s terminology draws a significantly wider circle for delay and probable denial under

CARRP than that circumscribed by 8 U.S.C. § 1182, and some of the memo’s language on its face

supports that claim. Absent more specific response on that score by the government, plaintiffs’

allegations stand for now.




                                                 36
         The substantive effect of CARRP also cuts against applying the procedural rule exception.

One need only look at the front page of this past decade’s newspapers to see that both the media

and the public at large have focused on the proper balance between pursuing national security

interests and safeguarding immigrants’ rights. See EPIC, 653 F.3d at 6 (noting public concern and

media coverage regarding “issues of privacy, safety, and efficacy” related to TSA policy,

suggesting it was a substantive rule). These concerns “no doubt would have been the subject of

many comments had [DHS] seen fit to solicit comments upon” the creation of the CARRP policy.

Id. Because “the substantive effect [of CARRP] is sufficiently grave,” Lamoille Valley R.R. Co.

v. ICC, 711 F.2d 295, 328 (D.C. Cir. 1983)—it could spell the difference between retaining and

losing the right to remain in this country—the policy of public participation in decision-making

that underlies the APA has considerable force here. Particularly given that the procedural-rule

exception is to be narrowly construed, the government has not shown that that exception exempts

CARRP from notice and comment. As the government points to no other exception to § 553’s

procedural requirements, the motion to dismiss the notice and comment claim will be denied.

   VI.      CLAIM   UNDER THE DUE    PROCES S CLAUS E (COUNT IV)

         Finally, plaintiffs claim in Count IV that the application of CARRP to Jafarzadeh violated

Karami’s Fifth Amendment right to due process. They allege that Karami has liberty interests in

“family unity,” “the maintenance and enjoyment of her marriage,” and “her right to remain in the

United States.” Am. Compl. ¶¶ 61–62. By subjecting Jafarzadeh’s LPR application to CARRP

without notice, and without any process to challenge the basis for his placement in the CARRP

program, the government allegedly violated Karami’s due process rights. Id. ¶¶ 63–64.

         “In the enforcement of the[ immigration] policies, the Executive Branch of the Government

must respect the procedural safeguards of due process.” Galvan v. Press, 347 U.S. 522, 531 (1954).



                                                 37
To state a procedural due process claim, plaintiffs must plausibly allege, first, that “there exists a

liberty or property interest of which a person has been deprived,” and second, that the procedures

the government provided were constitutionally inadequate. Swarthout v. Cooke, 562 U.S. 216,

219 (2011) (per curiam). 16 A failure at either step will defeat Karami’s claim.

         The parties fiercely debate whether the liberty interests Karami identifies are protected by

the Fifth Amendment in the circumstances of this case. The government points to the D.C.

Circuit’s decision in Swartz v. Rogers, 254 F.2d 338, 339 (D.C. Cir. 1958), which determined that

“the wife has no constitutional right which is violated by the deportation of her husband.” While

“deportation would put burdens upon the marriage,” giving the citizen or LPR spouse “the choice

of living abroad with her husband or living in this country without him,” the D.C. Circuit held

sixty years ago that the plaintiff’s claimed rights—to maintenance of her marriage and family unit,

and “to live in this country”—were not of constitutional import because “deportation would not in

any way destroy the legal union which the marriage created.” Id. This case came well before the

Supreme Court developed its modern procedural due process jurisprudence in Goldberg v. Kelly,

397 U.S. 254 (1970), and Mathews v. Eldridge, 424 U.S. 319 (1976). Swartz has been cited by no

other D.C. Circuit case in the sixty years since it was issued, and the recent district court decisions

that rely on it all concern the exception to consular nonreviewability that applies “when the

plaintiff is a U.S. citizen or legal resident[] who claims that the decision violated a constitutionally

protected liberty interest.” Udugampola v. Jacobs, 70 F. Supp. 3d 33, 40 (D.D.C. 2014); see Singh

v. Tillerson, 271 F. Supp. 3d 64, 71–72 (D.D.C. 2017); Jathoul v. Clinton, 880 F. Supp. 2d 168,

171–72 (D.D.C. 2012); Mostofi v. Napolitano, 841 F. Supp. 2d 208, 211–13 (D.D.C. 2012).



         16
          In addition to the Constitution, protected liberty interests also “may arise from an expectation or interest
created by” statute. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). But plaintiffs do not allege in their complaint
that Karami’s liberty interests arise out of statutory guarantees.

                                                         38
Perhaps, then, one could distinguish Swartz by reading it as a substantive rather than a procedural

due process case, since the question there was whether the Fifth Amendment guaranteed a

particular outcome—no deportation—rather than a procedure.

        This is certainly how plaintiffs hope the Court will view things.          They attempt to

distinguish Swartz in just this way, arguing that it does not apply because plaintiffs seek only “the

lawful adjudication of Plaintiff Jafarzadeh’s application” rather than an order “compel[ling] the

government to approve [Jafarzadeh’s] application.” Pls.’ Opp’n at 29. They instead ask the Court

to follow the reasoning of Escobar v. INS, 896 F.2d 564 (D.C. Cir. 1990), vacated and reh’g en

banc granted (D.C. Cir. Apr. 25, 1990), appeal dismissed, 925 F.2d 488 (D.C. Cir. 1991) (mem.),

which determined that resident aliens have a “right ‘to stay and live and work in this land of

freedom,’” and that to seek the Due Process Clause’s “right to be heard” a spouse of a removable

alien “need show only that a protected liberty interest is at stake, not that the government has no

choice but to grant her the ultimate result she seeks,” id. at 570 (quoting Landon v. Plasencia, 459

U.S. 21, 34 (1982)).    In other words: a resident spouse of an alien has an “interest in the

maintenance and enjoyment of her marriage and [an] interest in remaining in the United States,”

interests which are constitutionally adequate to invoke procedural due process, even if Swartz

suggests they are not enough to trigger substantive due process. Id. at 569.

       Whether liberty interests can suffice for the former when they do not for the latter is a

question the Supreme Court has hotly debated without reaching a definitive conclusion. Compare

Kerry v. Din, 135 S. Ct. 2128, 2137 (2015) (plurality opinion) (rejecting the notion that “there are

two categories of implied rights protected by the Due Process Clause: really fundamental rights,

which cannot be taken away at all absent a compelling state interest; and not-so-fundamental

rights, which can be taken away so long as procedural due process is observed”), with id. at 2142



                                                 39
(Breyer, J., dissenting) (differentiating between “procedural” and “substantive” protections and

asserting that the plaintiff had a sufficient procedural due process interest in her “freedom to live

together with her husband in the United States”). And Escobar never cited or engaged with Swartz,

the D.C. Circuit’s closest precedent on point. Indeed, Escobar itself is not binding precedent: “the

2-1 panel opinion [was] vacated because a rehearing en banc was granted,” thereby depriving it of

any precedential value. Bright v. Parra, 919 F.2d 31, 34 (5th Cir. 1990). The appeal was later

dismissed, and the underlying district court judgment and complaint were dismissed as moot. See

Escobar, 925 F.2d 488. As with Swartz, the D.C. Circuit has never cited Escobar.

       So we have one old, (perhaps) not entirely on-point, binding precedent favoring the

government’s position and one newer, (perhaps) more on-point, non-binding precedent favoring

plaintiffs’ position. But the law ultimately falls on the government’s side here. The district court

consular nonreviewability decisions that rely on Swartz, for instance, do not suggest that there is

any difference between substantive and procedural due process in their analyses of the plaintiffs’

alleged interests. Many of those plaintiffs’ claims themselves were procedural, asserting that the

denial of their spouses’ visas deprived them of constitutionally protected marital interests “without

due process.” Mostofi, 841 F. Supp. 2d at 211–13; see Udugampola, 70 F. Supp. 3d at 41. True,

this Court pointed to Escobar in its prior motion-to-dismiss opinion as perhaps providing a spouse

with due process rights in this instance. See Mem. Op. at 25 n.7. And true, Swartz technically did

not state that there is no constitutional interest in living in the country or maintaining one’s

marriage, but rather said that there is “no constitutional right which is violated” by deportation of

one’s spouse. 254 F.2d at 339 (emphasis added). But the reasoning of the Swartz decision, as

well as its holding, remains controlling until the D.C. Circuit or the Supreme Court says otherwise.

The Supreme Court has splintered over whether the rights Karami asserts apply to procedural due



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process claims in the immigration setting. See Din, 135 S. Ct. at 2138 (plurality opinion) (rights

do not apply); id. at 2139 (Kennedy, J., concurring in the judgment) (assuming for sake of

argument that rights apply); id. at 2142 (Breyer, J., dissenting) (rights apply). Swartz therefore

remains the law of this Circuit, by which this Court is bound. Hence, Count IV of the amended

complaint will be dismissed.

                                          CONCLUSION

        For the reasons explained above, the Court finds that it has subject-matter jurisdiction to

hear this case. Counts I, II, and IV will be dismissed. The APA claims in Counts III and V,

however, have run the gauntlet of the government’s present objections, and therefore the motion

to dismiss these claims will be denied. None of this is to say that the government may not be

successful later on in this suit, particularly if it provides more specific arguments on the remaining

claims and if the record, as it develops, shows reality to be closer to the government’s conception

than to plaintiffs’.   At this point, however, the government has not shown that the allegations

underlying Counts III and V are implausible. A separate order will issue on this date.

                                                                                 /s/
                                                                             JOHN D. BATES
                                                                        United States District Judge

Dated: August 6, 2018




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