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Khan v. United States Citizenship & Immigration Services

United States District Court, S.D. Florida

February 22, 2017




         THIS 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.[1]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.

         I. BACKGROUND

         A. Factual Allegations

         Plaintiff 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.

         1. CARRP

         To 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.

         Khan 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.

         Khan 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.

         2. Khan's Naturalization Application

         Khan 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.

         In 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.

         In 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.

         Despite 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 ...

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