                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

AHMED ZAKI DAWOOD AL-HADDAD,                      :
                                                  :
       Plaintiff,                                 :       Civil Action No.:       18-cv-674 (RC)
                                                  :
       v.                                         :       Re Document No.:        7
                                                  :
JEFFERSON B. SESSIONS, III, et al.,               :
                                                  :
       Defendants.                                :

                                  MEMORANDUM OPINION

GRANTING DEFENDANTS’ MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

                                      I. INTRODUCTION

       Plaintiff Ahmed Zaki Dawood Al-Haddad has brought this lawsuit under the

Administrative Procedure Act, 5 U.S.C. § 701 et seq., to challenge the denial of his application

for refugee resettlement in the United States under Section 207 of the Immigration and

Naturalization Act, 8 U.S.C. § 1157. Defendants now move to dismiss for lack of subject matter

jurisdiction and failure to state a claim, arguing that his claims are non-justiciable and barred by

longstanding principles of nonreviewability of visa denials. Because it lacks jurisdiction to

review discretionary denials of refugee resettlement applications, the Court grants the motion to

dismiss.

                                       II. BACKGROUND

       Plaintiff Ahmed Zaki Dawood Al-Haddad (“Al-Haddad”) is an Iraqi national who lives in

Baghdad. See 2014 Request for Review, Compl. Ex. 4, at 1, ECF No. 1-4. Al-Haddad and his

family have a history of involvement with U.S.-led and funded efforts in Iraq since at least 2007.

See id. at 1–2. In 2007, Al-Haddad and his family were forced to temporarily relocate to Syria
after a failed kidnapping attempt on one of his family members caused by his older brother’s

work in the International Zone in Baghdad. Id. at 2. Between 2009 and 2013, Al-Haddad

himself worked as a network engineer on a number of U.S. government contracts in the

International Zone. Id. at 1. Al-Haddad also acted as a translator for Reuters’ chief bureau

officer in Baghdad during that time. Id. And between at least February and September 2014, Al-

Haddad worked as a Communications Officer with the U.S. Agency for International

Development. Id. at 8. As a result of their work in the International Zone and on U.S.-led

projects, both Al-Haddad, his family, and his co-workers were targeted for reprisals on numerous

occasions over the years. See id. at 2. Aside from the 2007 kidnapping attempt, Al-Haddad and

his family were threatened on several occasions between 2009 and 2012. Id. After several of

Al-Haddad’s family members were admitted to the United States as refugees in 2012, threats

against Al-Haddad and his older brother continued. Id. at 2–3.

        Al-Haddad applied for refugee resettlement in the United States at some point in 2010 or

earlier. See id. at 2. Under Section § 207 of the Immigration and Naturalization Act (“INA”), 8

U.S.C. § 1157, the admission of refugees is committed to the discretion of the Secretary of the

Department of Homeland Security. See 8 U.S.C. § 1157(c)(1); 6 U.S.C. § 557. On June 16,

2014, the U.S. Citizenship and Immigration Services (“USCIS”) issued Al-Haddad a notice of

ineligibility for resettlement. Compl. at 5; 2014 Notice of Ineligibility, Compl. Ex. 1, at 1, ECF

No. 1-1. The notice explained that Al-Haddad’s application for refugee resettlement under § 207

of the INA had “been denied as a matter of discretion for security-related reasons.” 2014 Notice

of Ineligibility at 2.

        On September 8, 2014, Al-Haddad filed a request for review of the denial, attaching a

number of documents in support. Compl. at 5; see generally 2014 Request for Review. While




                                                 2
there is no formal mechanism for review of refugee resettlement applications, see 8 U.S.C. §

1157; 8 C.F.R. § 207.4 (“There is no appeal from a denial of refugee status under this chapter”),

USCIS considers informal requests for review of such denials in its discretion, see Defs.’ Mem.

Supp. Mot. Dismiss at 3, ECF No. 7. In this case, USCIS initially responded to the request for

review on September 11, 2017, overturning the denial of the request for resettlement and

indicating that Al-Haddad was “now conditionally eligible for resettlement, pending all

necessary . . . security clearances.” Sept. 11, 2017 Request for Review Response, Compl. Ex. 9,

at 1, ECF No. 1-9. However, just nine days later on September 20, 2017, USCIS issued Al-

Haddad a second notice of ineligibility for resettlement, referencing both his initial application

for refugee resettlement and his request for review. Compl. at 7; Sept. 20, 2017 Notice of

Ineligibility, Compl. Ex. 10, at 1, ECF No. 1-10. As with the 2014 notice, USCIS indicated that

“[a]fter a review of all the information concerning [Al-Haddad’s] case,” his application for

refugee resettlement had been denied “as a matter of discretion for security reasons.” Sept. 20,

2017 Notice of Ineligibility at 2.

       On March 24, 2018, Al-Haddad brought suit against various U.S. government officials,

alleging that the denial of his refugee resettlement application was an arbitrary and capricious

decision in violation of the Administrative Procedure Act (“APA”). Compl. at 2–3. On June 15,

2018, Defendants moved to dismiss for lack of subject matter jurisdiction and failure to state a

claim. See Defs.’ Mot. Dismiss at 1, ECF No. 7. Al-Haddad filed his opposition on August 6,

2018, Pl.’s Mem. Opp’n Mot. Dismiss at 1, ECF No. 10, and Defendants filed their reply on

August 17, 2018, Defs.’ Reply at 1, ECF No. 12. The motion to dismiss is now ripe for

consideration.




                                                 3
                                    III. LEGAL STANDARD

       Federal Rule of Civil Procedure 12(b)(1) provides for the dismissal of an action for lack

of subject matter jurisdiction. Federal courts are courts of limited jurisdiction, and it is generally

presumed that “a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins.

Co. of Am., 511 U.S. 375, 377 (1994). Accordingly, it is imperative that this Court “begin, and

end,” with an examination of its jurisdiction. Gen. Motors Corp. v. EPA, 363 F.3d 442, 448

(D.C. Cir. 2004).

       It is the plaintiff’s burden to establish that the court has subject matter jurisdiction over

his or her claims. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). In determining whether

the plaintiff has met this burden, a court must accept “the allegations of the complaint as true,”

Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015), and “construe the

complaint liberally, granting the plaintiff the benefit of all inferences that can be derived from

the facts alleged[,]” Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004) (internal quotation

marks omitted). However, “the plaintiff’s factual allegations in the complaint . . . will bear

closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to

state a claim.” Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13-14

(D.D.C. 2001).

                                          IV. ANALYSIS

       Al-Haddad challenges the discretionary denial of his refugee resettlement application

pursuant to 8 U.S.C. § 1157(c)(1). He brings this challenge under § 702 of the APA, arguing

that the denial caused a legal wrong that entitles him to judicial review. Compl. at 3 (citing 5

U.S.C. § 702). Defendants argue that the Court does not have jurisdiction over Al-Haddad’s

APA claims because the INA expressly divested courts of jurisdiction over discretionary




                                                  4
decisions like refugee resettlement denials. Defs’ Mem. Supp. at 6. The Court agrees with

Defendants, and accordingly grants the motion to dismiss.

        “The APA confers a general cause of action upon persons ‘adversely affected or

aggrieved by agency action within the meaning of a relevant statute.’” Block v. Cmty. Nutrition

Inst., 467 U.S. 340, 345 (1984) (quoting 5 U.S.C. § 702). However, the APA “withdraws that

cause of action to the extent the relevant statute ‘preclude[s] judicial review.’” Id. (alteration in

original) (quoting 5 U.S.C. § 701(a)(1)). And the INA includes such a restriction on judicial

review: it provides that “any . . . decision or action of . . . the Secretary of Homeland Security the

authority for which is specified . . . to be in the discretion of the . . . . Secretary of Homeland

Security” is not subject to judicial review by federal courts. 8 U.S.C. § 1252(a)(2)(B)(ii).

Section 1252 only includes a limited exception for review of constitutional claims or questions of

law brought in a petition for review of a final removal order in a court of appeals. Id.

§ 1252(a)(2)(D).

        The section of the INA pursuant to which Al-Haddad submitted his refugee resettlement

application provides that the Secretary of Homeland Security “may, in the [Secretary’s]

discretion and pursuant to such regulation as the [Secretary] may prescribe, admit any refugee

who is not firmly resettled in any foreign country, is determined to be of special humanitarian

concern to the United States, and is admissible . . . as an immigrant.” 8 U.S.C. § 1157(c)(1). 1

Defendants accordingly argue that the jurisdiction-stripping provisions of § 1252(a)(2)(B)(ii)

foreclose any judicial review of Al-Haddad’s claims, when Al-Haddad is not petitioning for


        1
        The text of 8 U.S.C. § 1157 leaves the admission of refugees to the discretion of the
Attorney General. However, authority over refugee admission was transferred to the Secretary
of Homeland Security after the passage of the Homeland Security Act of 2002. See Pub. L. No.
107-296, §§ 451, 1517, 116 Stat. 2135, 2196, 2311 (codified as amended at 6 U.S.C. §§ 271,
557).


                                                   5
review of a final removal order before a court of appeals. See Defs.’ Mem. Supp. at 6 & n.2.

Defendants point out that the Supreme Court has specifically identified refugee admission

decisions as a type of “decision[] specified by statute to be in the discretion of the attorney

General, and therefore shielded from court oversight by § 1252(a)(2)(B)(ii).” Id. at 6 (quoting

Kucana v. Holder, 558 U.S. 233, 248 (2010)). The Court agrees.

       Al-Haddad argues that his claims are reviewable because the fact that “the Secretary of

Homeland Security has the ultimate discretionary authority to issue a decision in particular cases,

does not mean that every determination is discretionary, and hence not subject to review.” Pl.’s

Mem. Opp’n at 6 (citing Mejia Rodriguez v. Dep’t of Homeland Sec., 562 F.3d 1137 (11th Cir.

2009)). Al-Haddad contends that absent additional language rendering the Secretary of

Homeland Security’s determination fully within her discretion, a grant of authority to the

Secretary to make a determination is not “specified to be in [her] discretion” under

§ 1252(a)(2)(B)(ii) and is thus reviewable by Courts. Id. (citing Alaka v. Attorney General, 456

F.3d 88, 95–96 (3d Cir. 2006); Nethagani v. Mukasey, 532 F.3d 150, 154–55 (2d Cir. 2008)).

Separately, Al-Haddad also argues that the APA provides for the review of agency actions that

are arbitrary, capricious, or an abuse of discretion. Id. at 7 (citing 5 U.S.C. § 706(2)(A)). Al-

Haddad’s arguments are unavailing.

       Al-Haddad is undoubtedly correct that a statutory grant of authority to the Secretary of

Homeland Security to make a determination in the INA is not alone enough for that

determination to be “specified . . . to be in [her] discretion,” 8 U.S.C. § 1252(a)(2)(B)(ii), and

thus unreviewable. Courts reviewing claims alleged to be foreclosed by § 1252(a)(2)(B)(ii) have

generally found that “the provision only applies to the ‘narrower category of decisions where

Congress has taken the additional step to specify that the sole authority for the action is in the




                                                  6
[Secretary]’s discretion.’” Liu v. Novak, 509 F. Supp. 2d 1, 7 (D.D.C. 2007) (quoting Alaka, 456

F.3d at 95).

       Courts have thus refused to apply the jurisdictional bar in two sets of circumstances.

First, courts have entertained claims under sections of the INA that do not expressly provide for

agency discretion. See, e.g., Alaka, 456 F.3d at 101–02 (finding that grant of authority to

“decide” and “determin[e]” whether alien should benefit from withholding of removal under 8

U.S.C. § 1231(b)(3) did not specify discretion to the Attorney General, and thus that decision to

deny withholding of removal was not unreviewable under § 1252(a)(2)(B)(ii)). And second,

even when a section of the INA provides that the ultimate decision is in the executive’s

discretion, courts have considered claims relating to statutory eligibility for relief, which is often

a precursor for the ultimate discretionary decision. See, e.g., Mejia Rodriguez, 562 F.3d at 1143–

44 (noting that while ultimate decision to grant temporary protected status was discretionary,

“the director of USCIS is required to make many decisions based on his legal interpretation of an

alien’s statutory eligibility . . . before exercising his discretionary authority,” and review of those

statutory eligibility decisions was not precluded by § 1252(a)(2)(B)(ii)).

       However, neither circumstance is at issue here. § 1157(c)(1) leaves the admissibility of

refugees to “the [Secretary of Homeland Security’s] discretion.” 8 U.S.C. § 1157(c)(1). Courts

to have reviewed the issue have also indicated that Congress expressly provided for agency

discretion in § 1157(c)(1). See, e.g., Kucana v. Holder, 558 U.S. 233, 248 (2010) (pointing to

§ 1157(c)(1) as an example of a “decision[] specified by statute ‘to be in the discretion of the

Attorney General,’ and therefore shielded from court oversight” (quoting 8 U.S.C.

§ 1252(a)(2)(B)(ii))); Bernardo ex rel. M & K Eng’g, Inc. v. Johnson, 814 F.3d 481, 501 (1st Cir.

2016) (Lipez, J., dissenting) (same); Alaka, 456 F.3d at 97 n.17; Doe v. Trump, 288 F. Supp. 3d




                                                   7
1045, 1071 (W.D. Wash. 2017) (same). As Defendants note, Defs.’ Reply at 2, and as

recognized by these courts, the language of § 1157(c)(1) clearly invokes the jurisdiction-

stripping provision of § 1252(a)(2)(B)(ii).

       And this case is not one where Al-Haddad asks for review of a statutory eligibility

determination or of another non-discretionary decision, as the plaintiff did in Mejia Rodriguez.

Neither is Al-Haddad challenging the government’s failure to act. Cf. Doe, 288 F. Supp. 3d at

1071–72 (contrasting plaintiffs’ claims that the Secretary of Homeland Security “fail[ed] to act

on refugee applications” with circumstances where a plaintiff would “challeng[e] a denial of

refugee admission,” and noting that pursuant to § 1157(c)(1), “the Secretary may have discretion

over what the decision will be, but not over whether a decision will be made”). Here, Al-Haddad

asks this Court to reverse “the wrongful denial of [his] Application for Refugee Resettlement in

the U.S. ‘as a matter of discretion for security related reasons.’” Compl. at 2 (quoting 2014

Notice of Ineligibility at 2). He specifically requests that this Court “[o]rder Defendants to

reopen and approve Plaintiff’s Application and issue the corresponding visa to . . . Plaintiff.” Id.

at 8. Al-Haddad points to the inconsistency between USCIS’s approval of his request for

reconsideration and the renewed denial of his application only a few days later. See Pl.’s Mem.

Opp’n at 7. But the September 20, 2017 Notice of Ineligibility specifically refers both to Al-

Haddad’s application and to his request for review, see Sept. 20, 2017 Notice of Ineligibility at 1,

and indicates that Al-Haddad’s application is denied as a matter of discretion “[a]fter a review of

all the information concerning [his] case,” id. at 2. As with the initial notice, the renewed notice

thus makes clear that USCIS made a final, discretionary decision in light of all the information it

had available. The jurisdiction-stripping provision of § 1252(a)(2)(B)(ii) bars the review of such

a final discretionary decision.




                                                 8
       Finally, the APA’s section providing for reviewability of agency action that is arbitrary,

capricious, or contrary to law cannot save Al-Haddad’s claims. Al-Haddad argues that

“Defendants’ argument that the Court lacks jurisdiction . . . ignores the issue of a decision found

to be arbitrary and capricious, and an abuse of agency discretion” pursuant to 5 U.S.C.

706(2)(A). Pl.’s Mem. Opp’n at 5. But § 706(2)(A) only applies if the Court has subject matter

jurisdiction to consider Al-Haddad’s APA claims. As discussed above, because 5 U.S.C. § 701

provides that the APA does not apply when a statute otherwise precludes jurisdiction, and

because the INA does preclude review of refugee resettlement denials, the Court does not have

subject matter jurisdiction under the APA and thus cannot consider Al-Haddad’s arguments

under § 706(2)(A).

                                       V. CONCLUSION

       For the foregoing reasons, Defendants’ motion to dismiss (ECF No. 7) is GRANTED,

and this case is DISMISSED. An order consistent with this Memorandum Opinion is separately

and contemporaneously issued.


Dated: January 16, 2019                                            RUDOLPH CONTRERAS
                                                                   United States District Judge




                                                 9
