                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-1297
                         ___________________________

                            Salahaddin Mokri Ayyoubi,

                        lllllllllllllllllllll Plaintiff - Appellant,

                                            v.

 Eric H. Holder, Jr., in his official capacity as the Attorney General of the United
 States; Janet Napolitano, in her official capacity as Secretary of the United States
Department of Homeland Security; Alejandro Mayorkas, in his official capacity as
Director, U.S. Citizenship and Immigration Services; Marilyn Wiles, in her official
     capacity as Director of the Nebraska Service Center, U.S. Citizenship and
Immigration Services; Donald Neufeld, in his official capacity as Chief of Service
           Center Operations, U.S. Citizenship and Immigration Services,

                      lllllllllllllllllllll Defendants - Appellees.
                                       ____________

                     Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                           Submitted: September 19, 2012
                               Filed: April 2, 2013


Before RILEY, Chief Judge, SMITH and COLLOTON, Circuit Judges.
                              ____________

COLLOTON, Circuit Judge.
       Salahaddin Ayyoubi, a refugee immigrant, applied to become a lawful
permanent resident of the United States. On February 26, 2008, the United States
Citizenship and Immigration Services (“USCIS”) denied Ayyoubi’s application.
USCIS found Ayyoubi to be statutorily ineligible for lawful permanent resident status
based on the agency’s determination that he had supported and received training from
the Kurdish Democratic Party of Iran (“KDPI”), a “Tier III” or “undesignated”
terrorist organization. See 8 U.S.C. § 1182(a)(3)(B).

      In April 2008, USCIS reopened Ayyoubi’s case, vacated its prior decision, and
placed the matter on “hold-in-abeyance status.” Ayyoubi v. Holder, No. 4:10-CV-
1881 SNLJ, 2011 WL 2983462, at *1 (E.D. Mo. July 22, 2011). On October 6, 2010,
Ayyoubi sued the Attorney General, the Secretary of the Department of Homeland
Security, and various USCIS officials. Ayyoubi sought a judgment declaring that the
agency acted unlawfully by withholding adjudication on his application without
periodically reviewing it, an injunction ordering USCIS to adjudicate his application
within 30 days, and other relief. Id.

       All parties moved for summary judgment. The district court granted the
defendants’ motion in part, holding that the delay in adjudicating Ayyoubi’s
application was neither unlawful nor unreasonable as a matter of law. Id. at *10.
Ayyoubi appealed. On October 1, 2012, after intervening action by the Secretary,
USCIS approved Ayyoubi’s application for adjustment to permanent resident status.
Because the case is now moot, we dismiss the appeal, vacate the judgment of the
district court, and remand the case with instructions to dismiss the complaint.

                                         I.

       Aliens who have supported or received training from groups deemed to be
terrorist organizations generally are barred from admission to the United States and
are ineligible for lawful permanent resident status. 8 U.S.C. § 1182(a)(3)(B); 8

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U.S.C. § 1159(c). On December 26, 2007, Congress authorized the Secretary of
Homeland Security, in consultation with the Secretary of State and the Attorney
General, to exempt qualifying terrorist groups or individual aliens from the statutory
bar. Consolidated Appropriations Act of 2008, Pub. L. No. 110-161, § 691(a), 121
Stat. 1844, 2364 (2007); 8 U.S.C. 1182(d)(3)(B)(i). On March 26, 2008, the Deputy
Director of USCIS issued a policy memorandum instructing its adjudicators to reopen
and place on hold any case in which relief was denied, if the alien might benefit from
future exemptions issued by the Secretary of Homeland Security under the newly
expanded authority. Memorandum from Jonathan Scharfen, Deputy Dir., U.S.
Citizenship and Immigration Servs., Withholding Adjudication and Review of Prior
Denials of Certain Categories of Cases Involving Association with, or Provision of
Material Support to, Certain Terrorist Organizations or Other Groups (Mar. 26,
2008); see also 8 C.F.R. § 103.5(a)(5). Pursuant to this guidance, USCIS reopened
Ayyoubi’s application and placed it on hold.

       On October 6, 2010, Ayyoubi sued. He argued, inter alia, that USCIS acted
illegally by withholding adjudication on his application without periodically
reviewing it. Pointing to 8 C.F.R. § 103.2(b)(18), Ayyoubi asserted that if USCIS
does not adjudicate an application for immigration benefits within two years of filing,
then it must thereafter obtain permission from higher agency officials to continue to
withhold adjudication once every six months until the application is approved or
denied. See 8 C.F.R. § 103.2(b)(18). The government responded that the regulation
is inapplicable to cases held in abeyance pending further agency guidance. As a
result, the government stated, it was not required to review Ayyoubi’s application
periodically and did not do so. The district court agreed with the government,
concluding that the “plain language of the regulation . . . demonstrates that it does not
apply.” It therefore granted the government’s motion for summary judgment.
Ayyoubi, 2011 WL 2983462, at *10. Ayyoubi appealed.




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       In August 2012, while this appeal was pending, the Secretary of Homeland
Security issued a Notice of Determination delegating to USCIS the authority to grant
immigration benefits to aliens associated with “Tier III” terrorist organizations. See
Notice of Determination: Exercise of Authority Under the Immigration and
Nationality Act, 77 Fed. Reg. 49,821 (Aug. 17, 2012); see also 8 U.S.C.
§ 1182(a)(3)(B). On September 26, 2012, USCIS issued a policy memorandum
supplementing its prior guidance. PM-602-0073, Implementation of New “Limited
General” Discretionary Exemption Under Immigration and Nationality Act (INA)
Section 212(d)(3)(B)(i) for Qualified Applicants with Specified Associations and
Activities with Qualified Undesignated, or “Tier III,” Terrorist Organizations (Sept.
26, 2012). The memorandum provides for a “Limited General” exemption that
enables a qualifying applicant to receive immigration benefits notwithstanding his or
her prior involvement with a “Tier III” terrorist organization. Id. at 3-7. To qualify,
an applicant must meet prescribed individual eligibility criteria and also demonstrate
that he or she merits the agency’s grace in the totality of the circumstances. Id. If the
alien fails to meet one or more of the exemption criteria, then his or her application
must be placed on hold or denied. Id. at 6-7.

        On October 1, 2012, USCIS granted Ayyoubi a “Limited General” exemption
and approved his application for adjustment to lawful permanent resident status. The
government contends that Ayyoubi’s case is now moot. Ayyoubi responds that he is
still entitled to a declaratory judgment that the agency’s actions are unlawful, because
he is uncertain why the agency granted him an adjustment of status. Ayyoubi
hypothesizes “two mutually exclusive explanations” for his approval: either (1)
USCIS found him to be ineligible for lawful permanent resident status on terrorism-
related grounds, pursuant to 8 U.S.C. §§ 1159(c) and 1182(a)(3), but granted him a
discretionary exemption from the statutory bar, or (2) USCIS determined that
Ayyoubi should never have been subject to the statutory bar in the first instance. He
asserts that if this court does not declare that USCIS acted illegally by failing
periodically to review his application while withholding adjudication on it, then the

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agency may exploit this asserted ambiguity and (1) reopen his approved application
and put him “back in limbo,” (2) illegally withhold adjudication on Ayyoubi’s as-yet
unfiled application for naturalization, or (3) illegally withhold adjudication on
petitions for entry into the United States that Ayyoubi asserts he will file on behalf
of his parents and siblings, in the event that his unfiled naturalization application is
approved.

       For the reasons that follow, we conclude that Ayyoubi’s uncertainty about the
reasons for his approval and his subjective fears about future applications or
eventualities are insufficient to establish a continuing controversy. We also believe
that the potential for the agency to repeat its actions in the future is too remote in this
case to justify the application of an exception to mootness.

                                            II.

       A court is without power to adjudicate disputes in the absence of a case or
controversy. Already, LLC v. Nike, Inc., 133 S. Ct. 721, 726 (2013). “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.” Id. (internal citation and quotation omitted).

       Ayyoubi argues that an actual controversy remains, because the agency’s
approval of his application for permanent resident status is “ambiguous,” and the
agency could apply its disputed interpretation of 8 C.F.R. § 103.2(b)(18) to future
applications for immigration benefits. He contends that this court should apply to his
case the exceptions to mootness for “voluntary cessation” of challenged conduct, see
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189
(2000), and for claims that are “capable of repetition, yet evading review.” See
Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (internal quotation omitted).



                                           -5-
        We conclude that the prospect of the future agency actions hypothesized by
Ayyoubi is too remote to establish an ongoing case or controversy. After August 10,
2012, any qualifying alien formerly associated with a group deemed to be a “Tier III”
terrorist organization may be eligible for a discretionary exemption from the statute
that would otherwise preclude him or her from obtaining lawful permanent resident
status. That the agency has in the past reopened Ayyoubi’s denied application does
not make it likely that the agency will in the future, despite the Secretary’s action of
August 10, 2012, proceed to (1) reopen Ayyoubi’s approved application, (2) withhold
adjudication on Ayyoubi’s reopened application, and (3) refuse periodically to review
the reopened application. Ayyoubi must allege perceptible harm to establish a case
or controversy, not simply “imagine circumstances in which he could be affected” by
agency action. Preiser v. Newkirk, 422 U.S. 395, 403 (1975). The threat of
government action here is “two steps removed from reality,” Super Tire Eng’g Co.
v. McCorkle, 416 U.S. 115, 123 (1974), and insufficient to satisfy the requirements
of Article III.

        Although Ayyoubi suspects he will endure injury during the naturalization
process and afterward, he has not even applied for the further benefits that he claims
he will seek. His assertion that the agency will fail to comply with the regulations
governing those processes is “too conjectural or hypothetical to present an actual
controversy,” Hall v. Curl, 566 F.2d 619, 621 (8th Cir. 1977) (per curiam), and the
“voluntary cessation” exception to mootness does not allow a plaintiff “to rely on
theories of Article III injury that would fail to establish standing in the first place.”
Already, LLC, 133 S. Ct. at 730. Even if the same acts of support that led the agency
initially to deny Ayyoubi’s application for permanent residency bear on any future
application for naturalization, the agency will consider those acts in the course of
processing a different kind of application that seeks a different benefit and presents
different considerations.




                                          -6-
      We are satisfied that the conduct Ayyoubi challenged “cannot reasonably be
expected to recur.” Id. at 729. The agency’s regulations have changed materially
since Ayyoubi filed his suit. Pursuant to those changed regulations, the agency has
adjudicated and approved Ayyoubi’s application for lawful permanent resident status.
Ayyoubi is now neither “on indefinite hold,” as he alleged in his complaint, nor
obliged to wait for an individualized exemption. He has received the relief that he
sought, and he alleges no injury that supports a continuing case or controversy. The
appeal is therefore moot.

       The appeal is dismissed. The judgment of the district court is vacated, and the
case is remanded with instructions to dismiss the complaint.
                        ______________________________




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