Singh v. Christian et al, No. 2:2007cv01151 - Document 62 (W.D. Wash. 2010)
Court Description: ORDER denying 54 Motion to Dismiss; granting in part and denying in part 57 Motion for Discovery by Judge Richard A Jones. Counsel are directed to meet and confer as ordered to address supplement to administrative record. (JJ)
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Singh v. Christian et al Doc. 62 HONORABLE RICHARD A. JONES 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 NIRMAL SINGH, Plaintiff, 10 CASE NO. C07-1151RAJ v. 11 12 MARILYN P. WILES1, et al., Defendants. 13 14 I. INTRODUCTION 15 16 17 18 19 20 21 This matter comes before the court on Defendants’ motion (Dkt. # 54) to dismiss this action for lack of subject matter jurisdiction, and Plaintiff’s motion (Dkt. # 57) to compel supplementation of the administrative record and discovery. Defendants requested oral argument on the motion to dismiss, but the court finds the purely legal question the motion raises suitable for disposition without oral argument. For the reasons stated below, the court DENIES Defendants’ motion to dismiss, and GRANTS in part and DENIES in part Plaintiff’s motion to compel. 22 II. BACKGROUND 23 24 ORDER Plaintiff Nirmal Singh is a native of India who has resided lawfully in the United States since at least 1999, when he was granted asylum. In February 2001, he filed an 25 26 1 27 The court directs the clerk to substitute Marilyn Wiles, director of the Nebraska Service Center of United States Citizenship and Immigration Services, for Gerald Heinauer, her predecessor. Fed. R. Civ. P. 25(d). 28 ORDER – 1 Dockets.Justia.com 1 application to adjust his immigration status to “lawful permanent resident.” United States 2 Citizenship and Immigration Services (“USCIS”)2 took no action on his application for 3 years. In July 2007, Mr. Singh filed this suit to compel adjudication of his application. 4 Events at USCIS have caused Mr. Singh to amend his complaint twice. In 5 October 2007, USCIS issued a notice of its intent to deny Mr. Singh’s application based 6 on his alleged provision of material support in 1984 to an Indian group known as 7 Damdami Taksal. According to the notice, USCIS deemed Damdami Taksal to be a 8 terrorist organization. On February 20, 2008, with cross-motions for summary judgment 9 pending, USCIS denied Mr. Singh’s application because of his support of Damdami 10 Taksal. Mr. Singh agreed that this action mooted his request to compel adjudication of 11 his application, but he sought leave to amend his complaint to add a claim challenging the 12 denial of his application. The court granted leave on May 21, 2008. By that time, USCIS 13 had notified Mr. Singh that it had vacated the denial of his application. It did so in 14 response to a March 26, 2008 top-level memorandum directing the reopening of all 15 immigrant petitions that USCIS had denied based on providing material aid to terrorist 16 organizations. Dkt. # 34, Ex. A (Mar. 26, 2008 memo). The memo explained that recent 17 statutory changes expanded the discretion of certain officials to grant waivers from some 18 terrorism-related admissibility bars. The memo directed USCIS adjudicators to withhold 19 decisions on any applications that might benefit from a waiver, and to reopen any 20 applications adjudicated after December 2007. All such applications were to be placed 21 on hold pending decisions from the Secretary of the Department of Homeland Security 22 (“DHS”) regarding waivers. Mr. Singh’s application was placed on hold in accordance 23 with the memo. In his first amended complaint, Mr. Singh challenged both the vacated 24 denial of his application and the decision to place his application on indefinite hold. 25 26 2 27 When Mr. Singh filed his I-485 application, USCIS was still known as Immigration and Naturalization Services (“INS”) and was an agency of the Department of Justice. 28 ORDER – 2 1 Mr. Singh again moved for summary judgment, acknowledging that he could not 2 challenge the vacated denial of his application, but again asking the court to compel 3 adjudication of the application. The court denied that motion in December 2008, ruling 4 that the delayed adjudication was not unreasonable in light of consideration of a waiver 5 that might beneficially affect his application. At the same time, the court noted that the 6 delay would become less reasonable with time, particularly if the USCIS offered no 7 specific details about the timeline of a waiver decision. The court entered orders three 8 times in 2009 permitting USCIS to delay adjudication pending a waiver decision. In July 9 2009, USCIS agreed to adjudicate Mr. Singh’s application within 90 days. USCIS lived 10 up to its agreement, denying Mr. Singh’s application on October 2, 2009. Dkt. # 46, 11 Ex. 1 (hereinafter “Denial Ltr.”). It again cited Mr. Singh’s alleged provision of material 12 support to Damdami Taksal. Denial Ltr. at 3 (“[Y]ou are inadmissible . . . for having 13 engaged in terrorist activities . . . due to your having given material support to Damdami 14 Taksal by allowing some of its members to spend the night in your temple and to hide 15 there from the police.” The letter noted that neither the DHS Secretary nor the Secretary 16 of State had adopted a waiver affecting Mr. Singh. Id. Mr. Singh thus moved to amend 17 his complaint again, this time to challenge the denial of his application. The court 18 granted leave to amend. His second amended complaint names as Defendants the DHS 19 Secretary, the Director of USCIS, and the Director of the USCIS Nebraska Service 20 Center from which the letter denying his adjustment application issued. Except where 21 clarity demands, the court will refer to Defendants collectively as USCIS. 22 Now before the court is USCIS’s motion to dismiss the second amended complaint 23 for lack of subject matter jurisdiction. Mr. Singh moves the court to compel USCIS to 24 supplement the administrative record and to provide him discovery. 25 26 27 28 ORDER – 3 III. ANALYSIS 1 2 A. Motion to Dismiss 3 USCIS’s motion to dismiss invokes the jurisdiction-stripping provision of 8 4 U.S.C. § 1182(d)(3)(B)(i). The text of that provision makes little sense without a review 5 of the statutory context in which it arises. The court begins with that review. 6 Subsection 1182(a) describes numerous grounds for deeming an alien inadmissible 7 to the United States. Subsection 1182(a)(3) sets forth “[s]ecurity and related grounds” for 8 inadmissibility. Among other things, subsection (a)(3) makes inadmissible any alien who 9 “has engaged in terrorist activity.” § 1182(a)(3)(B)(i)(I). An alien “[e]ngage[s] in 10 terrorist activity” if he “commit[s] an act that [he] knows, or reasonably should know, 11 affords material support” to a terrorist organization. § 1182(a)(3)(B)(iv) & 8 U.S.C. 12 § 1182(a)(3)(B)(iv)(VI). “Terrorist organization[s]” fall into two categories: those 13 officially designated as terrorist organizations, § 1182(a)(3)(B)(v)(I)-(II); and 14 undesignated terrorist organizations, § 1182(a)(3)(B)(v)(III). When USCIS denied Mr. 15 Singh’s application, it cited, among other things, its conclusion that Damdami Taksal was 16 an “undesignated terrorist organization” to whom Mr. Singh provided “material support 17 in 1984.” Denial Ltr. at 3. 18 The law permits either the Secretary of State or the DHS Secretary to grant 19 waivers of certain terrorism-related grounds of inadmissibility. Either Secretary may 20 grant a waiver as to a particular alien, or she may grant a waiver as to a particular 21 undesignated terrorist organization. § 1182(d)(3)(B)(i). The March 2008 memo that led 22 USCIS to reopen Mr. Singh’s application was issued because the DHS Secretary was 23 considering implementing one or more such waivers. 24 The law also provides, however, that the decision to grant or not grant such a 25 waiver is in the “Secretary’s sole unreviewable discretion.” § 1182(d)(3)(B)(i) (West 26 2005). That was the sole provision of the statute addressing judicial review until 27 Congress amended the law in 2008. In those amendments, Congress retained the 28 ORDER – 4 1 language committing waivers to the Secretary’s sole unreviewable discretion, but it also 2 added two more sentences to the same subsection. The third sentence provides that 3 “Notwithstanding any other provision of law . . ., no court shall have jurisdiction to 4 review such a determination or revocation except in a proceeding for review of a final 5 order of removal . . . .” Id. USCIS contends that this provision strips the court of 6 jurisdiction over this lawsuit.3 The most likely meaning of “determination” in the jurisdiction-stripping sentence 7 8 of § 1182(d)(3)(B)(i), and the meaning Mr. Singh espouses, is the determination of the 9 Secretary of State or DHS Secretary to grant a waiver to the terrorism-related grounds of 10 3 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 For the sake of completeness, the court includes the full text of the relevant subsection of the statute: The Secretary of State, after consultation with the Attorney General and the Secretary of Homeland Security, or the Secretary of Homeland Security, after consultation with the Secretary of State and the Attorney General, may determine in such Secretary’s sole unreviewable discretion that subsection (a)(3)(B) shall not apply with respect to an alien within the scope of that subsection or that subsection (a)(3)(B)(vi)(III) shall not apply to a group within the scope of that subsection, except that no such waiver may be extended to an alien who is within the scope of subsection (a)(3)(B)(i)(II), no such waiver may be extended to an alien who is a member or representative of, has voluntarily and knowingly engaged in or endorsed or espoused or persuaded others to endorse or espouse or support terrorist activity on behalf of, or has voluntarily and knowingly received military-type training from a terrorist organization that is described in subclause (I) or (II) of subsection (a)(3)(B)(vi), and no such waiver may be extended to a group that has engaged [in] terrorist activity against the United States or another democratic country or that has purposefully engaged in a pattern or practice of terrorist activity that is directed at civilians. Such a determination shall neither prejudice the ability of the United States Government to commence criminal or civil proceedings involving a beneficiary of such a determination or any other person, nor create any substantive or procedural right or benefit for a beneficiary of such a determination or any other person. Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title [28 USCS §§ 1361 and 1651], no court shall have jurisdiction to review such a determination or revocation except in a proceeding for review of a final order of removal pursuant to section 1252 of this title [8 USCS § 1252], and review shall be limited to the extent provided in section 1252(a)(2)(D) [8 USCS § 1252(a)(2)(D)]. The Secretary of State may not exercise the discretion provided in this clause with respect to an alien at any time during which the alien is the subject of pending removal proceedings under section 1229a of this title [8 USCS § 1229a]. 27 8 U.S.C. § 1182(d)(3)(B)(i). 28 ORDER – 5 1 inadmissibility specified in § 1182(a)(3)(B). The subsection in question strips courts of 2 “jurisdiction to review such a determination or revocation except in a proceeding for 3 review of a final order of removal . . . .” § 1182(d)(3)(B)(i) (emphasis added). The 4 phrase “such a determination or revocation” suggests that the referenced determination 5 has its antecedent in the subsection itself. The first sentence of § 1182(d)(3)(B)(i) 6 permits either Secretary to “determine in such Secretary’s sole unreviewable discretion 7 that subsection (a)(3)(B) shall not apply with respect to an alien . . . or that subsection 8 (a)(3)(B)(vi)(III)) shall not apply to a group . . . .” This is the only instance in which 9 § 1182(d)(3)(B)(i) uses the verb “determine” or a conjugate thereof. All subsequent 10 instances (there are three) use the nominalization “such determination.” Given the 11 syntax, it is a stretch to construe “such determination” to refer to a determination other 12 than the one stated at the outset of the subsection. Two other district courts within the 13 Ninth Circuit have reached the same conclusion. Ahmed v. Mayorkas, No. C 08- 14 1680MHP, 2009 U.S. Dist. LEXIS 126030, at *15 (N.D. Cal. Dec. 22, 2009); Khan v. 15 Scharfen, C 08-1398 SC, 2009 U.S. Dist. LEXIS 28948, at *18 (N.D. Cal. Apr. 6, 2009). 16 So far as the court is aware, no court has ruled to the contrary. 17 USCIS insists that the “determination” to which the jurisdiction-stripping 18 provision applies includes the determination that Mr. Singh is inadmissible as an alien 19 who has engaged in terrorist activity. The notion that “determination” in the jurisdiction- 20 stripping provision might mean something other than the determination of whether to 21 grant a terrorism-related inadmissibility waiver is not without support in the statute. 22 § 1182(a)(3)(B) never uses a variation of the word “determine,” casting doubt on 23 USCIS’s assertion that the “determination” of § 1182(d)(3)(B)(i)’s jurisdiction-stripping 24 provision refers to any application of subsection a(3)(B). Nonetheless, § 1182(b)(1) uses 25 a conjugate of “determine” to refer to the decision to deny an application for adjustment 26 of status based on any of the grounds of inadmissibility in § 1182(a). § 1182(b)(1) 27 (setting notice requirements when “adjustment of status is denied by an immigration or 28 ORDER – 6 1 consular officer because the officer determines the alien to be inadmissible under 2 subsection (a)”). In addition, the determination of whether to grant a terrorism-related 3 exception is already committed to the “sole unreviewable discretion” of the named 4 officials. The later protection in the same subsection of that “determination” from 5 judicial review is arguably surplusage. It is arguably not surplusage, however, as the 6 jurisdiction-stripping sentence expands judicial review by permitting review within the 7 context of removal proceedings.4 Although neither Mr. Singh’s interpretation nor USCIS’s interpretation of the 8 9 jurisdiction-stripping provision is without flaws, the court’s obligation to construe any 10 jurisdiction-stripping provision narrowly dictates that it must adopt the former 11 interpretation. There is a “strong presumption in favor of judicial review of agency 12 action.” I.N.S. v. St. Cyr, 533 U.S. 289, 298 (2001). Even where a statute plainly limits 13 judicial review to some extent, the court must favor the “narrower construction of a 14 jurisdiction-stripping provision” over a “broader one.” ANA Int’l Inc. v. Way, 393 F.3d 15 886, 891 (9th Cir. 2004). In this case, the court adopts the narrower interpretation of the 16 jurisdiction-stripping provision in question. The court therefore holds that the only 17 “determination” that § 1182(d)(3)(B)(i) makes unreviewable is the determination of 18 either the Secretary of State or DHS Secretary to grant a waiver to terrorism-related 19 grounds of inadmissibility. Because Mr. Singh does not challenge such a determination, 20 the court must deny USCIS’s motion to dismiss. The court’s disposition today makes it unnecessary to consider USCIS’s argument 21 22 that § 1182(d)(3)(B)(i) permits Mr. Singh to challenge the determination that he is 23 4 27 In a response to Mr. Singh’s notice of new case authority after briefing on the instant motions had closed, USCIS attempted for the first time to cite relevant portions of the legislative history of the jurisdiction-stripping provision of § 1182(d)(3)(B)(i). The court finds nothing persuasive in the scant references to the legislative history that USCIS provided. The court also notes that USCIS used the same document to cite 8 U.S.C. § 1252(a)(2)(B)(i)-(ii) for the first time. It is not clear whether USCIS asserts those subsections as bar to this court’s jurisdiction. If it does, it is obligated to do so in a proper motion. This order makes no ruling as to the applicability of § 1252(a)(2)(B)(i)-(ii) in this case. 28 ORDER – 7 24 25 26 1 inadmissible in a removal proceeding. Even if USCIS is correct, the existence of an 2 alternate path to review does not affect the court’s conclusion that § 1182(d)(3)(B)(i) is 3 no bar to the instant lawsuit. The court observes, however, that removal proceedings 4 provide no obvious relief for Mr. Singh. He is not currently in removal proceedings, and 5 he no doubt prefers it this way. Despite USCIS’s determination that he is inadmissible, 6 he remains a lawful resident of this country as an asylee. He has been in the United 7 States since 1999, and it would appear that USCIS does not deem his alleged provision of 8 support to members of a terrorist organization more than 25 years ago to be a good reason 9 to attempt to remove him from this country. To do so, it would have to initiate 10 proceedings to terminate his refugee status. See 8 U.S.C. § 1158(c)(2). In these 11 circumstances, USCIS advocates a statutory interpretation that leaves Mr. Singh in 12 immigration limbo. He cannot, in USCIS’s view, challenge the determination that he is 13 inadmissible. He thus must indefinitely bear, without recourse, the burdens that come 14 with bare refugee status. See Ahmed, 2009 U.S. Dist. LEXIS 126030, at *19-20 15 (contrasting limitations of refugee status with benefits of permanent resident status). 16 Although this may be the result USCIS prefers, it has not demonstrated that this is the 17 result Congress intended. Id. at *20-21 (noting lack of evidence that “Congress intended 18 such a result, which creates a legal black hole”). 19 B. 20 Motion to Compel The court now turns to Mr. Singh’s motion to compel supplementation of the 21 administrative record or discovery. USCIS filed the administrative record in three parts. 22 Dkt. # 7 (filed Nov. 2, 2007), Dkt. # 32 (filed Jul. 14, 2008), Dkt. # 53 (filed Dec. 22, 23 2009). The court’s review of that record leads it to assume that it is incomplete. The 24 most recent supplement, filed after USCIS’s most recent denial of Mr. Singh’s 25 application, contains nothing except the October 2, 2009 denial letter. The previous 26 supplement ended with USCIS’s April 2008 notice that it was reopening Mr. Singh’s 27 application. The administrative record thus contains a seventeen-month gap. At a 28 ORDER – 8 1 minimum, Mr. Singh submitted at least one document to USCIS for review during this 2 period. Moreover, the denial letter itself references a number of source documents that 3 are not part of the record.5 It appears to the court that the administrative record is 4 incomplete in the sense that it does not even contain all documents that would 5 undisputedly be part of the administrative record. Courts also have discretion to expand the administrative record in four narrow 6 7 circumstances: (1) where supplementation is necessary to determine if the agency 8 considered all factors and adequately explained its decision, (2) where the agency has 9 relied on documents not in the record, (3) where supplementation is necessary to explain 10 complex terminology or subject matter within the record, and (4) where a plaintiff shows 11 that the agency acted in bad faith. Lands Council v. Powell, 395 F.3d 1019, 1029 (9th 12 Cir. 2005). Courts are to exercise their discretion to supplement the record sparingly, so 13 as not to undermine the general rule that agency decisions are subject to limited review. 14 Id. Courts sometimes suggest that formal discovery procedures should be the vehicle for 15 supplementing administrative record, and they sometimes suggest that supplementation 16 of the administrative record is a process that does not require formal discovery. Here, Mr. Singh raises two concerns. First, as noted above, the record currently 17 18 on file does not include all documents on which USCIS relied in denying Mr. Singh’s 19 application. Second, Mr. Singh has presented evidence that at least one other alien with 20 ties to Damdami Taksal was deemed admissible despite those ties. With the exception of 21 the top-level waiver authority discussed above, application of the terrorism-related 22 grounds of inadmissibility at § 1182(a)(3) is not discretionary. If USCIS has deemed 23 some aliens with ties to Damdami Taksal admissible while deeming others inadmissible, 24 it raises an inference of, at a minimum, arbitrary action, and possibly action taken in bad 25 faith. 26 5 27 USCIS apparently provided some of these source documents to Mr. Singh, but has not formally made them part of the administrative record. 28 ORDER – 9 1 At this point, the parties’ disputes over the content of the administrative record and 2 the need to supplement that record are not sufficiently defined for the court to resolve 3 them. It would appear that this is in part because USCIS has chosen to avoid those 4 disputes while awaiting the resolution of its challenge to the court’s jurisdiction. Mr. 5 Singh, meanwhile, has provided very little information revealing whether he has 6 attempted to resolve these disputes with USCIS. There are no declarations from counsel 7 that indicate that any substantive discussions about supplementation of the administrative 8 record have occurred. In addition, while Mr. Singh’s motion seeks to compel discovery, 9 he has not actually propounded any discovery. Putting that omission aside, the 10 “discovery” that he requests in his motion is, in several respects, not discovery at all. For 11 example, there is no discovery procedure to compel a party to draft affidavits, yet several 12 of Mr. Singh’s “discovery” requests would require USCIS to draft affidavits for him. 13 The court therefore orders the parties to meet and confer regarding the state of the 14 administrative record and the need to supplement the administrative record. Mr. Singh’s 15 counsel shall prepare for that conference by sending USCIS a letter explaining precisely 16 what documents he wants, and why he wants them. He must be mindful of the 17 constraints that limit the scope of administrative record or extra-record documents that a 18 court may consider in a challenge to an agency’s decision. He must also be mindful of 19 the objections USCIS raised in response to his current motion to compel. He must send 20 the letter so that counsel for USCIS receives it at least a week before the parties meet and 21 confer. They shall meet and confer no later than June 4, 2010. If the parties are unable to 22 resolve their disputes, Mr. Singh may file a motion to compel supplementation of the 23 administrative record no later than June 18, and note that motion in accordance with 24 Local Rules W.D. Wash CR 7(d)(3). That motion shall contain evidence of the parties’ 25 attempts to resolve this dispute. To the extent that there are documents that no one 26 disputes should be made part of the record or a supplement to the record, USCIS shall 27 produce them as soon as possible. If the parties can resolve their disputes without the 28 ORDER – 10 1 court’s intervention, they shall file a statement indicating as much by June 18, along with 2 a proposed schedule for resolving this action via dispositive motion or by other means. 3 The procedure above shall be used in lieu of formal discovery for the time being. 4 To the extent that it appears that formal discovery would be necessary or helpful in this 5 action, the court will consider opening discovery in connection with its resolution of any 6 motion Mr. Singh files in accordance with the previous paragraph. IV. CONCLUSION 7 8 For the reasons stated above, the court DENIES Defendants’ motion to dismiss 9 (Dkt. # 54) and GRANTS in part and DENIES in part Plaintiff’s motion to compel (Dkt. 10 # 57). The parties shall follow the procedures stated in this order to resolve their disputes 11 about the status of the administrative record and any supplement to that record. 12 DATED this 27th day of April, 2010. 13 14 A 15 The Honorable Richard A. Jones United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER – 11
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