Dhakal, Arjun v. Lynch, Loretta et al

Brief in Support of 10 Motion to Dismiss

W.D. Wis.May 17, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN ______________________________________________________________________________ ARJUN DHAKAL, Plaintiff, v. Case No. 17-cv-10 LORETTA E. LYNCH, in her official capacity as Attorney General of the United States; LORI SCIALABBA, in her official capacity as Deputy Director of the United States Citizenship and Immigration Services; KENNETH S. MADSEN, in his official capacity as the Director of the Chicago Asylum Office, Defendants. ______________________________________________________________________________ MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS ______________________________________________________________________________ Defendants, JEFF SESSIONS1, in his official capacity as Attorney General of the United States; JAMES MCCAMENT2, in his official capacity as Deputy Director of the United States Citizenship and Immigration Services (“USCIS”); KENNETH S. MADSEN, in his official capacity as the Director of the Chicago Asylum Office of USCIS, by their attorney, Jeffrey M. Anderson, Acting United States Attorney for the 1 Former Attorney General, Loretta E. Lynch, was replaced by Jeff Sessions with the change of the Executive Branch administration. The case caption should be changed accordingly. 2 Former USCIS Deputy Director Lori Scialabba was replaced by James McCament following her resignation. Deputy Director McCament is currently the Acting Director of USCIS pending appointment of a Director of USCIS. The case caption should be changed accordingly. Case: 3:17-cv-00010-jdp Document #: 11 Filed: 05/17/17 Page 1 of 11 2 Western District of Wisconsin, by Richard D. Humphrey, Assistant United States Attorney for that district, submit this memorandum of law in support of their motion to dismiss this case. Dismissal is warranted on the basis that plaintiff Dhakal has failed to exhaust his administrative remedies, therefore, this Court lacks subject matter jurisdiction and the complaint fails to state a claim upon which relief can be granted. ALLEGED FACTS On January 13, 2017, Dhakal filed a complaint for declaratory judgment and other relief in the United States District Court for the Western District of Wisconsin. Doc. no. 1. Dhakal alleges the following pertinent facts in his complaint which includes exhibits attached thereto. Dhakal is a native of Nepal. Doc. no. 1, para. 14. He arrived in the United States on June 1, 2013, as a visitor on a visa facilitated by the University of Rhode Island Center for Nonviolence and Peace Studies. Id. He eventually moved to Johnson Creek, Wisconsin, where he now lives. Id. at 17. He manages a gas station in Johnson Creek. Id. In August 2013, Dhakal filed with USCIS a Form I-589, Application for Asylum and for Withholding of Removal. Doc. no. 1, para. 18; Exhibit B, p. 1; Exhibit C, para. 8. He was interviewed by an Asylum Officer on June 2, 2016. Doc. no. 1, para. 18; Exhibit C, para. 8. On August 1, 2016, defendant Kenneth S. Madsen, Director, Chicago Asylum Office, issued to Dhakal a Notice of Intent to Deny his request for asylum. Doc. no. 1, para. 19; Exhibit B. Defendant Madsen stated in the notice that Dhakal’s testimony “was not found credible because it lacked detail and was internally Case: 3:17-cv-00010-jdp Document #: 11 Filed: 05/17/17 Page 2 of 11 3 inconsistent.” He further stated that he intends to deny Dhakal’s asylum application because the events Dhakal described do not amount to persecution. Doc. no. 1, para. 25; Exhibit B, p. 3. Dhakal was given 16 days to submit rebuttal or new evidence. Doc. no. 1, Exhibit B, p. 4. Although Dhakal submitted a rebuttal, defendant Madsen found it insufficient and unpersuasive, and on September 9, 2016, he issued a Final Denial of Dhakal’s asylum application. Doc. no. 1, para. 40; Exhibit A. Defendant Madsen stated in the Final Denial that Dhakal’s asylum application was being denied for the reasons contained in the Notice of Intent to Deny. Doc. no. 1, Exhibit A, p. 2. He further stated that “There is no appeal from this Decision.” Id. He also explained that because Dhakal was maintaining Temporary Protected Status (“TPS”)3, his asylum application would not be referred to an Immigration Judge for adjudication before the U.S. Department of Justice, Executive Office for Immigration Review. Doc. no. 1, para. 101; Exhibit A, p. 2. Dhakal alleges in the complaint that the defendants failed to timely process his asylum application by failing to hold an initial interview within 45 days and by failing to adjudicate the application with 180 days. Doc. no. 1, para. 103. He further alleges that defendant Madsen’s decision denying his application for asylum was contrary to law because he (Dhakal) proved that a reasonable person in his circumstances would fear persecution in Nepal. Doc. No. 1, para. 108. 3 See INA § 244(a)(1)(A) for removal protection for TPS beneficiaries. Case: 3:17-cv-00010-jdp Document #: 11 Filed: 05/17/17 Page 3 of 11 4 Dhakal alleges that this Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question), 28 U.S.C. §§ 2201 and 2202 (declaratory judgment), and 5 U.S.C. § 701 et seq. (Administrative Procedure Act). ARGUMENT As will be discussed in more detail below, Dhakal has not exhausted his administrative remedies, therefore, his complaint should be dismissed pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction and pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. The administrative process for obtaining asylum in the United States consists of two separate procedures. One is affirmative and the other is defensive.4 If an alien is physically present in the United States, he has the option to apply for asylum within one year of the date of his last arrival in this country by submitting to the USCIS a completed Form I-589, Application for Asylum and for Withholding of Removal. 8 C.F.R. §§ 208.2(a) and 208.4. This is the first step in the affirmative process. An asylum officer will then conduct a non-adversarial interview of the applicant to elicit all relevant and useful information bearing on the applicant’s eligibility for asylum. 8 C.F.R. § 208.9(b). Although the affirmative asylum process is non-adversarial, the burden of proof is on the applicant to show that he is a refugee, as defined in § 101(a)(42) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42). See 8 C.F.R. § 208.13(a). The 4 The affirmative and defensive asylum procedures are set forth in the official website for USCIS at www.uscis.gov. Case: 3:17-cv-00010-jdp Document #: 11 Filed: 05/17/17 Page 4 of 11 5 applicant may qualify as a refugee either because he has suffered past persecution in his country of origin or because he has a well-founded fear of future persecution if he were to return to that country. 8 C.F.R. § 208.13(b). Based on the Form I-589, the information provided by the applicant at the interview or otherwise, any comments submitted by the Department of State, and any other information specific to the applicant’s case, the asylum officer can approve, deny, or dismiss the application or, in certain circumstances, can refer the matter to an Immigration Judge. 8 C.F.R. §§ 208.9(f) and 208.14. If an alien is referred to an Immigration Judge by USCIS, the asylum application, filed with USCIS, will be forwarded to the Immigration Judge. Id. A defensive application for asylum occurs when removal proceedings have been brought against an alien, and the alien requests asylum as a defense against removal from the United States. 8 C.F.R. § 208.2(b). Removal proceedings are conducted in immigration court before an Immigration Judge. Immigration Judges hear defensive asylum cases in an adversarial courtroom- like proceeding. Those present include the alien (and his attorney, if represented) and an attorney from Immigration and Customs Enforcement (“ICE”). After hearing both sides, the Immigration Judge determines whether the individual is eligible for asylum. 8 C.F.R. § 208.14(a). If eligibility is found, the Immigration judge will order that asylum be granted. If eligibility is not found, the Immigration Judge will determine whether the alien is eligible for any other form of relief from removal. If no eligibility is found, the Immigration Judge will order the individual to be removed from the United States. Case: 3:17-cv-00010-jdp Document #: 11 Filed: 05/17/17 Page 5 of 11 6 The Immigration Judge’s decision can be appealed to the Board of Immigration Appeals (“BIA”) and then directly to the United States Court of Appeals. 8 U.S.C. § 1252; 8 C.F.R. § 1003.1(b). If proceedings are initiated without there having been an affirmative asylum procedure before an Asylum Officer, the alien will submit an asylum application for the first time to the Immigration Judge. 8 C.F.R. § 208.4(b). In the present case, Dhakal initiated the optional affirmative asylum process by filing a completed asylum application with USCIS. The Director of the Chicago Asylum Office (defendant Madsen) ultimately denied the application. It is important to note that for Dhakal, the Director did not have the option of referring the matter to an Immigration Judge so that removal proceedings could be initiated and Dhakal’s asylum application could be considered as part of his defense in that proceeding. This is because Dhakal holds TPS. Under 8 C.F.R. § 208.14(c)(2), in the case of an applicant for asylum who is maintaining valid TPS at the time his asylum application is decided, the Asylum Officer’s only choices are to either grant asylum or else deny it; he cannot refer the matter to an Immigration Judge for removal proceedings. See 8 C.F.R. § 208.14(c)(2). Removal proceedings can only be initiated when the applicant is no longer in TPS. Dhakal’s asylum application was denied on September 9, 2016. Doc. no. 1, para. 40; Exhibit A. At the time of the denial, his TPS was valid until December 24, 2016. Doc. no. 1, para. 19; Exhibit B. On October 26, 2016, the designation of Nepal for TPS was extended until June 24, 2018. See Extension of the Designation of Nepal for Temporary Protected Status, 81 FR 74470 (Oct. 26, 2016). Case: 3:17-cv-00010-jdp Document #: 11 Filed: 05/17/17 Page 6 of 11 7 The United States Court of Appeals for the Seventh Circuit has squarely held that an alien cannot seek district court review of the [Director’s] denial of the alien’s asylum application but must exhaust his administrative remedies by renewing his asylum application in a deportation (now called “removal”) proceeding. Kashani v. Nelson, 793 F.2d 818, 827 (7th Cir. 1986). In Kashani, the plaintiff, an Iranian national, entered the United States on a student visa and shortly thereafter filed a request for asylum with the District Director of what was then the Immigration and Naturalization Service (now USCIS). Like Dhakal, Kashani alleged he was a refugee with a well-founded fear of persecution if he were to return to his native country. The District Director denied Kashani’s request for asylum and set a date by which Kashani had to depart the United States. Kasahni, 793 F2d at 819. Kashani then filed suit in the district court alleging that the District Director had abused her discretion in denying his request for asylum. Id. He asked the district court to grant his request for asylum and to enjoin any further deportation proceedings against him. The district court dismissed the complaint, holding that “[a]n applicant for asylum does not have a right to appeal the District Director’s decision in the district court.” Id. at 819. The Court of Appeals observed that the Immigration and Nationality Act is silent on the question of whether the merits of the District Director’s denial of an alien’s asylum application may be reviewed in the district court. Id. at 824. Thus, the Court examined the legislative history and judicial interpretation of the Act. Id. at 824-27. The Court concluded as follows: Case: 3:17-cv-00010-jdp Document #: 11 Filed: 05/17/17 Page 7 of 11 8 In light of the overall statutory scheme, the judicial interpretation of the Act, and Congress’ failure explicitly to provide for district court jurisdiction to review the District Director’s denials of petitions for asylum and to enjoin further deportation proceedings, we hold that aliens may not seek district court review of the District Director’s denial of their asylum petitions and injunction of deportation proceedings but must exhaust their administrative remedies by renewing the asylum petition in the ensuing deportation proceeding. Id. at 826-27. Although there have been some changes in the regulations since Kashani was decided,5 none of the changes have any effect on the precedential value of the Kashani decision. Kashani is still good law, and it is directly applicable to the present case. Thus, under Kashani, Dhakal must await removal (deportation) proceedings and renew his asylum application in that proceeding. Only when these proceedings are concluded will he have exhausted his administrative remedies. One difference between Kashani and the present case is that in Kashani the plaintiff was given one month from the date of denial of his asylum application to depart the country. Id. at 819. If he did not depart by that deadline, deportation proceedings could be commenced against him. In the present case, Dhakal’s asylum application was denied on September 9, 2016, but he was not ordered to depart the country, due to his TPS. As previously stated, Dhakal’s TPS would 5 For instance, it is no longer the District Director of the Immigration and Naturalization Service who decides applications for asylum. The Immigration and Naturalization Service no longer exists, and it is now the Director of the regional asylum office (here the Chicago Asylum Office) of the USCIS who decides such applications. Also, deportation proceedings have been replaced by removal proceedings. Case: 3:17-cv-00010-jdp Document #: 11 Filed: 05/17/17 Page 8 of 11 9 have ended on December 24, 2016, but it was renewed and is now valid until June 24, 2018. It should be noted that Kashani is not the only case that holds that an alien, whose asylum application has been denied by the District Director of INS, cannot appeal the decision to the district court. In Yim Tong Chung v. Smith, 640 F. Supp. 1065 (S.D.N.Y. 1986), the court reached the same conclusion. The court in Chung observed that to allow an appeal to the district court of the District Director’s denial of asylum, and then to allow an appeal to the Court of Appeals following an unsuccessful de novo presentation to an Immigration Judge and appeal to the BIA, would be to afford judicial review twice. Id. at 1068-69. The court held that such a “tortious procedure would clearly circumvent the asylum process” and that “dismissing plaintiffs’ claims at this stage does not deny them judicial review, but merely defers it to a later date.” Id. at 1069. The court in Chung also noted that “[w]hile the District Director’s asylum decision is “final” in the sense that it is a non-appealable, discretionary decision, [citations omitted], it is not in any sense a final administrative action.” Id. The same is true for Dhakal. The decision of the Director of the Chicago Asylum Office is “final” in the sense that it is a non-appealable, discretionary decision, but it is not in any sense a final administrative action. Also worthy of consideration is the more recent case of Jama v. Department of Homeland Security, 760 F.3d 490 (6th Cir. 2014). In Jama, the court held that plaintiff’s complaint failed to state a claim upon which relief can be granted Case: 3:17-cv-00010-jdp Document #: 11 Filed: 05/17/17 Page 9 of 11 10 because neither the termination of the plaintiff’s refugee status nor the denial of his application for status adjustment constituted “final agency action” as required for judicial review under the APA. The court determined that Jama could petition the Court of Appeals for review of the challenged agency actions after the conclusion of his removal proceedings. Id. at 497. At that time, the Court of Appeals would consider each of USCIS’s decisions, as well as the Immigration Judge’s decision and the BIA’s final decision regarding Jama’s removability and asylum application. Id. As previously mentioned, Dhakal alleges in the complaint that he was harmed by defendant Madsen’s failure to comply with INA §§ 208(d)(5)(A)(ii) and (iii), 8 U.S.C. §§ 1158(d)(5)(A)(ii) and (iii), which require that an interview of an asylum applicant be conducted within 45 days from the filing of an asylum application and that the application be adjudicated within 180 days. Dhakal misstates the statute in his complaint by claiming that USICS is required to meet these deadlines “…unless the applicant has exceptional circumstances and is unable to attend the interview as scheduled.” Doc. no. 1, paras. 94 and 95. These subsections actually provide that the 45-day and 180-day time frames shall be met “in the absence of exceptional circumstances.” The “exceptional circumstances” apply to the government, not the applicant. With the overwhelming number of asylum applications that USCIS has received in recent years, exceptional Case: 3:17-cv-00010-jdp Document #: 11 Filed: 05/17/17 Page 10 of 11 11 circumstances are clearly present. 6 Even if Dhakal was harmed by the delay he experienced, this does not entitle him to any form of relief. CONCLUSION For the reasons set forth, Dhakal’s complaint should be dismissed for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted, on the basis that he has not exhausted his administrative remedies. Dated this 17th day of May, 2017. Respectfully submitted, JEFFREY M. ANDERSON Acting United States Attorney By: s/ Richard D. Humphrey RICHARD D. HUMPHREY Assistant United States Attorney United States Attorney’s Office Western District of Wisconsin 222 West Washington Avenue, Suite 700 Madison, WI 53703 Phone: (608) 264-5158 6 There is currently a backlog of over 260,000 asylum applications pending before USCIS. The official website of USCIS, which is found at www.uscis.gov and is updated monthly, shows the length of time it is currently taking each Asylum Office to schedule interviews for asylum applicants. It shows, for example, that persons who filed asylum applications during January and February 2014 were not scheduled for interviews until February 2017; a waiting period of three years. Dhakal filed his asylum application in August 2013 and was interviewed in June 2016. Thus, his waiting period was two years and ten months. According to the USCIS website, the waiting period in some jurisdictions is over five years. In the Los Angeles Asylum Office, for example, persons who filed asylum applications in August 2011 were not scheduled for interviews until March 2017; a waiting period of five years and seven months. The average waiting period in all jurisdictions appears to be at least three years. Case: 3:17-cv-00010-jdp Document #: 11 Filed: 05/17/17 Page 11 of 11