United States District Court, S.D. Florida
P. GAYLES UNITED STATES DISTRICT JUDGE
CAUSE comes before the Court on the Motion to
Dismiss in Part [ECF No. 21] filed by Defendants United
States Citizenship and Immigration Services
(“USCIS”); the U.S. Department of Homeland
Security; Roketa Mansfield, Acting Director of USCIS's
Miami Field Office; Linda Swacina, Director of USCIS's
Miami District Office; Leon Rodriguez, the Director of USCIS;
and Jeh Johnson, Secretary of the Department of Homeland
Security.The Court has carefully considered the
Amended Complaint, the arguments and briefs of counsel, and
the applicable law, and is otherwise fully advised in the
premises. At the hearing on the motion held on September 30,
2016, the Court granted the Defendants' motion and
dismissed Counts II-VII of the Amended Complaint
“pursuant to this Court's forthcoming written
order.” [ECF No. 50]. This Order follows.
Ikram Ul Haq Khan is a native and citizen of Pakistan and a
lawful permanent resident of the United States. Am. Compl.
¶ 1. In 2006, Khan submitted an application to become a
naturalized citizen, but USCIS did not move forward with the
adjudication of his application. Id. Khan filed a
mandamus action in this District in 2013 seeking to compel
USCIS to issue a decision on his application, after which
USCIS interviewed Khan and denied his application.
Id. In this action, Khan alleges that his
application was not processed under USCIS's normal
adjudicatory procedures, but rather “under a parallel,
extra-legal adjudication track called the ‘Controlled
Application Review and Resolution Program'”
(“CARRP”). Id. ¶ 2. According to
Khan, this program prohibits USCIS field officers from
approving applications for certain immigration benefits
(including naturalization) where the application is deemed to
pose a “national security concern, ” but rather
directs them to delay adjudication of or deny applications
selected for CARRP processing. Id. ¶ 3.
become a U.S. citizen through naturalization, an applicant
must satisfy several prerequisites established by the
Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 101 et seq. These include that he must have
continuously resided in the United States for a period of
five years and have been physically present in the United
States for at least half of that time, and that he must have
been “a person of good moral character” for the
five-year period before the filing of his naturalization
petition. 8 U.S.C. § 1427. If an applicant satisfies the
statutory requirements for naturalization, USCIS “shall
grant the application.” 8 C.F.R. § 335.3(a). If
USCIS's final decision is to deny naturalization, the
applicant may seek de novo review of the denial in
the U.S. district court with jurisdiction over the
applicant's place of residence. 8 U.S.C. § 1421(c).
In such a proceeding, the district court “shall make
its own findings of fact and conclusions of law and shall, at
the request of the petitioner, conduct a hearing de novo on
the application.” Id.
alleges that in April 2008, USCIS created CARRP, under which
USCIS officers screen applications for “national
security concerns, ” and an applicant is considered to
pose such a concern if it is determined that he has an
“articulable link to prior, current, or planned
involvement in, or association with, an activity, individual
or organization” that has engaged in terrorist activity
or been a member of a terrorist organization. Id.
¶¶ 19-20, 22. If an application is selected for
processing under CARRP, USCIS removes the application from
the agency's routine adjudication track and places it on
a separate CARRP track. Id. ¶ 20. Khan contends
that CARRP applications “are subject to an entirely
distinct set of adjudicatory procedures that lack any
authority or foundation in statute or regulation.”
Id. ¶ 21.
asserts that at each step in the processing of a CARRP
application, adjudication is steered towards either delay or
denial. Id. ¶ 27. In the initial stages of
CARRP adjudication, USCIS officers are instructed to perform
an “eligibility assessment” to determine whether
the applicant qualifies for the benefit, but these such
assessments “often lead to the pretextual denials that
lack a legitimate basis in fact and law and would not have
been issued had the application been reviewed without the eye
toward denial CARRP demands.” Id. ¶ 28.
According to Khan, through CARRP, USCIS cedes control over
the adjudication of naturalization applications to other
federal agencies that lack authority over immigration
matters. Id. ¶ 29. USCIS often denies CARRP
applications because law enforcement agencies outside the
Department of Homeland Security request such a decision.
Id. ¶ 30. CARRP applications are delayed when
USCIS cannot find a reason to deny the application, but when
an applicant files a mandamus action, “USCIS field
officers will deny a statutorily-eligible applicant because
CARRP prevents such officers from issuing an approval.”
Id. ¶ 31.
Khan's Naturalization Application
was admitted to the United States in a lawful permanent
resident status as the unmarried son of a United States
citizen on June 26, 2001. Id. ¶ 34. On June 19,
2006, Khan filed an application for naturalization with USCIS
and was subsequently scheduled for a naturalization
interview. Id. ¶ 35. On June 27, 2008, after
CARRP was created, USCIS issued a notice advising Khan that
“due to unforeseen circumstances” it would have
to cancel the interview. Id. ¶ 36.
April 2013, after waiting almost five years for an interview
to be rescheduled, Khan filed a mandamus action seeking to
compel USCIS to schedule a naturalization interview, conduct
the interview, and issue a decision on his case. Id.
¶ 37; see also Khan v. USCIS, No. 13-21351
(S.D. Fla. filed Apr. 18, 2013). After Khan filed
the action, USCIS scheduled Khan for two interviews (both of
which he attended)-on July 18 and October 24, 2013.
Id. ¶ 38.
letters dated July 9 and September 5, 2013, Khan's
counsel requested in writing that USCIS inform him
“whether Mr. Khan's application for naturalization
has been, is, or will be subject to [CARRP].”
Id. ¶ 39. Khan's counsel further requested
that if Khan's application “has been, is, or will
be subject to CARRP, ” that “USCIS provide
[counsel] with any and all information and/or evidence that
the USCIS (or any other U.S. government agency, department
and/or entity) considered and/or utilized to determine that
his application should (or will be) designated for
CARRP.” Id. USCIS denied the July 9th request
by letter on July 12, 2013. Id. ¶ 40.
this denial, a document later obtained through a FOIA request
identifies the “Interviewing Officer” at
Khan's July 18, 2013 interview as “Ahmed Ztaoui,
MIA CARRP.” Id. ¶ 41.
Additionally, a “General Inquiry” printout dated
and produced as part of a FOIA request lists the
“Location” of Khan's alien file as of January
2010 as “FDNS-NS De-Con/Internal/Entern.”
Id. “FDNS” is an abbreviation for
USCIS's “Fraud Detection and National
Security” directorate, which is the division
responsible for CARRP. Id. Khan believes that