Pakzadeh v. U.S. Department of Homeland Security et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , MOTION to dismiss for lack of jurisdiction

W.D. Mo.January 23, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI BEHRANG PAKZADEH, ) Plaintiff, ) ) v. ) ) UNITED STATES DEPARTMENT ) No.: 4:16-cv-01015-REL OF HOMELAND SECURITY, ) ) JOHN F. KELLY,1 Secretary, ) United States Department of ) MEMORANDUM OF LAW Homeland Security ) IN SUPPORT OF DEFENDANTS’ ) MOTION TO DISMISS UNITED STATES CITIZENSHIP ) AND IMMIGRATION SERVICES, ) ) LORI SCIALABBA, Acting Director, ) United States Citizenship and Immigration ) Services, ) ) DAVID DOUGLAS, District Director, ) District 15, United States Citizenship ) and Immigration Services, ) Defendants. ) ____________________________________) COME NOW Defendants the United States Department of Homeland Security (“DHS”), John F. Kelly, Secretary of DHS; United States Citizenship and Immigration Services(“USCIS”); Lori Scialabba, Acting Director of USCIS; David Douglas, District Director USCIS District 15, by and through their undersigned counsel, and hereby submit their Memorandum of Law in Support of Defendants’ Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). 1 On January 20, 2017, John F. Kelly was sworn in as Secretary of Homeland Security and should be substituted for Jeh Johnson as a Respondent pursuant to Federal Rule of Civil Procedure 25(d). Case 4:16-cv-01015-DW Document 8 Filed 01/23/17 Page 1 of 22 2 INTRODUCTION Plaintiff Behrang Pakzadeh (“Plaintiff”) filed a complaint against USCIS seeking an order compelling action on his Application for Naturalization, Form N-400. Plaintiff asserts jurisdiction under 28 U.S.C. §§ 1361, 5 U.S.C. § 701 et seq., 8 U.S.C. 1101 et seq., and “the Constitution of the United States.” Compl. ¶ 40. Defendants respectfully move this Court to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted. First, under 8 U.S.C. § 1447(b), the statute that controls jurisdiction over suits to compel adjudication of naturalization applications, jurisdiction is premature. Jurisdiction under that provision is predicated on Government inaction after an applicant’s interview. It is undisputed that Plaintiff has not yet been interviewed on his naturalization application. As such, the condition that triggers jurisdiction under § 1447(b) – examination of the application under § 1446(b) – is yet to be fulfilled in Plaintiff’s case. Where Congress has defined a single trigger for jurisdiction in the district courts to compel action, Plaintiff cannot avoid those limitations by asserting the more general jurisdictional provisions of 28 U.S.C. § 1361 or 5 U.S.C. § 701. Second, Plaintiff further fails to state a claim over which relief may be granted where the Immigration and Nationality Act (“INA”) does not specify a time frame within which an interview on naturalization applications must take place. Accordingly, this Court should dismiss the complaint in its entirety. Case 4:16-cv-01015-DW Document 8 Filed 01/23/17 Page 2 of 22 3 FACTUAL BACKGROUND Plaintiff is a citizen of Iran who originally entered the United States as a student in August 2006 and became a lawful permanent resident on January 7, 2013.2 Compl. ¶ 2, 19-20. Plaintiff filed with USCIS his Application for Naturalization, Form N-400 on October 15, 2015, and appeared at the USCIS Application Support Center in Kansas City, Missouri to provide his biometrics on November 10, 2015. Id. ¶ 3. As of the date of the filing of the complaint, USCIS had not scheduled Plaintiff to appear for an interview regarding his N-400 application. Because Plaintiff deems his application unlawfully stalled, id. ¶ 3, he filed this complaint with the Court on September 22, 2016. LEGAL STANDARDS I. Dismissal under Fed. R. Civ. P. 12(b)(1) is appropriate when the Court lacks subject matter jurisdiction. It is a fundamental legal principle that federal courts are courts of limited jurisdiction. A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 551 (2005); Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). Dismissal is appropriate under Rule 12(b)(1) when the district court lacks subject matter jurisdiction over the claim. See Fed. R. Civ. P. 12(b)(1). Federal subject matter jurisdiction must exist at the time the action is commenced. Beuford v. Resolution Trust Corp., 991 F.2d 481, 485 (8th Cir. 1993). The plaintiff bears the burden of establishing that the court has jurisdiction. Id.; Arkansas Blue Cross and Blue Shield v. Little Rock Cardiology Clinic, P.A., 551 F.3d 812 (8th Cir. 2009). 2 Any facts taken from the Complaint and exhibits attached thereto are presumed true only for purposes of this motion. Case 4:16-cv-01015-DW Document 8 Filed 01/23/17 Page 3 of 22 4 Federal courts jealously guard their own jurisdiction and, where appropriate, will dismiss a case for lack of subject matter jurisdiction even if the issue is not raised by the parties. Bueford, 991 F.2d at 481. Lack of subject matter jurisdiction may be raised by any party at any time, and it is never waived: “[W]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” Fed. R. Civ. P. 12(h)(3); Bueford, 991 F.2d at 481. Under Rule 12(b)(1), the district court is free to hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary. Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993); Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990). In such circumstances, no presumptive truthfulness attaches to a plaintiff’s allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Id. II. Dismissal under Fed. R. Civ. P. 12(b)(6) is appropriate when a claims for relief is not cognizable under the facts alleged. A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Benton v. Merrill Lynch & Co., 524 F.3d 866, 870 (8th Cir. 2007). In so doing, the Court must accept as true all factual allegations in the complaint. Id.; Parnes v. Gateway 2000, Inc., 122 F.3d 539, 546 (8th Cir. 1997). A complaint must be dismissed under Rule 12(b)(6) when a plaintiff’s allegations fail to state a claim showing an entitlement to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555-556 (2007); Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347 (2005). A Rule 12(b)(6) dismissal is also warranted where a complaint fails to allege facts under a cognizable legal theory. Id. If a claim for relief is not plausible under the facts alleged, dismissal is appropriate. Benton, 524 F.3d at 870; Parnes, 122 F.3d at 546. Case 4:16-cv-01015-DW Document 8 Filed 01/23/17 Page 4 of 22 5 LEGAL BACKGROUND I. The Naturalization Process The Immigration and Nationality Act (“INA”) explains that “[n]o person . . . shall be naturalized unless” he or she satisies certain requirements. 8 U.S.C. § 1421(a). To qualify for naturalization, an applicant must have, among other things: (1) resided continuously within the United States for at least five years immediately preceding the date of a naturalization application up to the time of admission to citizenship, and (2) been a person of good moral character for at least five years immediately preceding the date of a naturalization application up to the time of admission to citizenship. See 8 U.S.C. § 1427(a), (e).3 II. The Administrative Process The Secretary of the Department of Homeland Security has the sole authority to naturalize persons as citizens of the United States. 8 U.S.C. § 1421(a). 4 USCIS acts on behalf of the Secretary in naturalization matters. Homeland Security Act of 2002, Pub. L. No. 107-296, §§ 441, 451, 471, 116 Stat. 2135 (Nov. 25, 2002). To seek naturalization, an alien first must file an N-400 with USCIS. 8 U.S.C. § 1445(a); see also 8 C.F.R. § 316.4(a). After an N-400 has been filed, USCIS conducts an investigation and examination of the applicant, and a fortiori, evaluates whether the applicant meets the above-referenced statutory qualifications for 3 The statutory period for an applicant applying for naturalization based on marriage to a United States citizen is three years. See 8 U.S.C. §§ 1427(a)(3), 1430(a). This is the statutory period applicable to Plaintiff’s naturalization application. See Compl.¶ 22. 4 On March 1, 2003, the Immigration and Naturalization Service (“INS” or “Service”) ceased to exist as an independent agency within the Department of Justice, and its functions were transferred to the newly formed Department of Homeland Security (“DHS”). Homeland Security Act of 2002, Pub. L. No. 107-296, §§ 441, 451, 471, 116 Stat. 2135 (Nov. 25, 2002). The naturalization authority of INS was transferred to USCIS. Id. References in the naturalization statute to the Attorney General now refer to the Secretary of DHS, and references in the INA to the INS’s naturalization authority now refer to USCIS. 6 U.S.C. §§ 552(d), 557. Case 4:16-cv-01015-DW Document 8 Filed 01/23/17 Page 5 of 22 6 naturalization. 8 U.S.C. § 1446(a), (b), (d); 8 C.F.R. §§ 335.1, 335.2(a), 335.2(b). As a part of this process, the INA requires USCIS to investigate thoroughly the background of every applicant for citizenship in order to determine whether that applicant is eligible to be naturalized. 8 U.S.C. § 1446(a)-(b).5 Consistent with this statutory mandate, regulations provide: Subsequent to the filing of an application for naturalization, [USCIS] shall conduct an investigation of the applicant. The investigation shall consist, at a minimum, of a review of all pertinent records, police department checks, and a neighborhood investigation in the vicinities where the applicant has resided and has been employed, or engaged in business, for at least the five years immediately preceding the filing of the application . . . . 8 C.F.R. § 335.1. The regulations also specify that citizenship applicants are to be interviewed only after a full background check is completed. 8 C.F.R. § 335.2(b). A full and complete background investigation is part of the inquiries into whether an applicant has continuously resided in the United States, and whether an applicant possesses good moral character. 8 U.S.C. § 1427(a). For example, a criminal background check can be a means of ascertaining an alien’s whereabouts, and is one of the primary means to appraise an alien’s moral character. 8 U.S.C. § 1101(f); 8 C.F.R. § 316.10(b)(3)(iii) (stating an alien may not be able to establish good moral character if he has committed unlawful acts). When, as part of its process for vetting and adjudicating applications, a case presents indicators of potential national security concerns, USCIS directs officers to fully investigate to determine whether the applicant is statutorily eligible for the benefit sought. When a naturalization application presents indicators of potential national security concerns, USCIS officers adjudicate the application, like any naturalization application, consistent with the statutory criteria for naturalization. 8 U.S.C. 5 See also Pub. L. No. 105-119, Title I, 111 Stat. 2448 (Nov. 26, 1997) (Congress mandating that USCIS “receiv[e] confirmation from the Federal Bureau of Investigation (‘FBI’) that a full criminal background check has been completed, except for those [applications] excepted by regulation as of January 1, 1997,” before adjudicating a naturalization application). Case 4:16-cv-01015-DW Document 8 Filed 01/23/17 Page 6 of 22 7 § 1427.6 Ultimately, after the conclusion of a naturalization examination, USCIS determines “whether the application should be granted or denied, with the reasons therefor.” 8 U.S.C. § 1446(d); see also 8 C.F.R. §§ 335.3(a), 336.1. If USCIS initially denies a Form N-400 naturalization application, the applicant may seek an administrative appeal of the denial by filing a Form N-336, Request for a Hearing on a Decision in Naturalization under 8 U.S.C. §§ 1447(a). See also 8 C.F.R. § 336.2(a), (b). III. Judicial Review of Naturalization Applications Although vesting the primary naturalization authority with the Secretary of the Department of Homeland Security, Congress did not completely restrict district court jurisdiction over the naturalization application process. 8 U.S.C. § 1421(a). In pertinent part, a naturalization applicant may apply to the district court for a hearing on the naturalization application if USCIS does not grant or deny the application by the end of the 120-day period after the date on which an N-400 interview is conducted. 8 U.S.C. § 1447(b); 8 C.F.R. § 335.3. In such a case, the court “may either determine the matter or remand the matter, with appropriate instructions, to [USCIS] to determine the matter.” 8 U.S.C. § 1447(b). Some jurisdictions hold that 8 U.S.C. § 1447(b) vests exclusive jurisdiction in the district court. E.g. Aljabri v. Holder, 745 F.3d 816 (7th Cir. 2014); Bustamante v. Napolitano, 582 F.3d 403, 408 (2d Cir. 2009). 6 As a part of the examination process, the INA authorizes USCIS to issue subpoenas for documents and testimony from the applicant himself and third parties that may possess pertinent information. 8 U.S.C. § 1446(b). Case 4:16-cv-01015-DW Document 8 Filed 01/23/17 Page 7 of 22 8 ARGUMENT I. In the absence of an independent statutory basis, this Court does not have jurisdiction under the Declaratory Judgment Act or the Federal Question statute. Plaintiff generally asserts jurisdiction pursuant to the federal question statute, 28 U.S.C. § 1331, Compl. ¶ 40, and seems to imply jurisdiction under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, Compl., Prayer for Relief at 1. The Declaratory Judgment Act, 28 U.S.C. § 2201, does not provide an independent basis for subject matter jurisdiction; rather, it only creates a particular kind of remedy available in actions where the district court already has jurisdiction to entertain a suit. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72 (1950). To be eligible for declaratory relief, Plaintiff must first establish jurisdiction pursuant to an independent basis. Id. at 671-72. Similarly, the general federal question jurisdiction statute is only applicable when the plaintiff sues under a federal statute that creates a right of action in federal court. 28 U.S.C. § 1331. Accordingly, 28 U.S.C. § 1331 cannot alone provide a basis of jurisdiction without some other federal statute creating a right of action in federal court. Id. As explained below, Plaintiff cannot point to any provision of law which, if construed in his favor and applied to the facts, would require the relief he seek. II. This Court lacks jurisdiction under 8 U.S.C. § 1447(b), the statute that controls jurisdiction over suits to compel adjudication of naturalization applications. Plaintiff’s Complaint, in essence, seeks an order from the Court to compel USCIS to adjudicate his N-400 Application for Naturalization. While the INA does provide for federal district court jurisdiction over a suit seeking an order compelling adjudication of an application for naturalization after the 120-day period following the “examination” of the applicant, 8 U.S.C. § 1447(b), it is undisputed that Plaintiff has not yet been “examined,” i.e., interviewed, on his N- 400 Application. Compl. ¶¶ 4, 5, 7. Accordingly, the Court should dismiss Plaintiff’s complaint Case 4:16-cv-01015-DW Document 8 Filed 01/23/17 Page 8 of 22 9 for lack of jurisdiction. Naturalization is a privilege and not a right. United States v. Schwimmer, 279 U.S. 644, 649 (1929); Maney v. United States, 278 U.S. 17, 22 (1928); Abdul-Khalek v. Jenifer, 890 F. Supp. 666, 669 (E.D. Mich. 1995). Congress thus prescribed specific conditions that an alien must meet to be eligible for citizenship through naturalization. Recognizing that the naturalization act confers a privilege, the Supreme Court has repeatedly held that the naturalization statutory prerequisites must be strictly applied. E.g., Federenko v. United States, 449 U.S. 490, 506 (1981); Maney, 278 U.S. 17 (1928); United States v. Ness, 245 U.S. 319 (1917). The applicant for naturalization has the burden of establishing by a preponderance of the evidence that he meets all requirements for naturalization. 8 C.F.R. §§ 316.2(b) and 316.10(a)(1); see also INS v. Pangilinan, 486 U.S. 875, 876 (1988) (directing that a person seeking to acquire rights as a citizen “can rightfully obtain them only upon terms and conditions specified by Congress,” quoting United States v. Ginsberg, 243 U.S. 472, 474 (1917)); Berenyi v. District Director, INS, 385 U.S. 630, 637(1967) (stating that all doubts regarding the applicant’s fitness for citizenship should be resolved in favor of the United States and against the petitioner). The INA and pertinent regulations, in turn, provide for a specific process by which an application for naturalization is adjudicated: (1) the application itself; (2) an investigation and background check of the applicant; (3) an examination of the applicant by USCIS; and (d) the decision on the application. 8 U.S.C. § 1446(a); 8 C.F.R. § 335.1. Although neither the statute nor the regulations specify a particular time frame within which this process must be completed, 8 U.S.C. § 1447(b) allows for federal district court jurisdiction over a suit seeking to compel adjudication of an application for naturalization after the 120 day period following the Case 4:16-cv-01015-DW Document 8 Filed 01/23/17 Page 9 of 22 10 “examination” of the applicant, at which time the court may make a decision on the application or remand the issue to USCIS. 8 U.S.C. § 1447(b). USCIS requires a definitive response to all background checks prior to the scheduling of an applicant’s interview and final adjudication of a naturalization application. 8 C.F.R. § 335.1. In this case, Plaintiff’s interview on his N-400 Application for Naturalization has not yet taken place, Compl. ¶¶ 5-6, and, as such, the 120-day jurisdiction-granting provision of § 1447(b) cannot begin to run. Consequently, this Court does not have jurisdiction to compel adjudication of his application. Id. III. This Court should dismiss Plaintiff’s claims for mandamus relief because he fails to state a claim under the Mandamus and Venue Act (“Mandamus”), 28 U.S.C. § 1361. The Mandamus Act provides that “[t]he district court shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. A writ of mandamus is appropriate where: “(1) the petitioner can establish a clear and indisputable right to the relief sought, (2) the defendants have a nondiscretionary duty to honor that right, and (3) the petitioner has no other adequate remedy.” Castillo v. Ridge, 445 F.3d 1057, 1060-61 (8th Cir. 2006). A writ of mandamus “is an extraordinary remedy, to be reserved for extraordinary situations.” Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988). If Plaintiffs cannot show their eligibility for mandamus relief, 28 U.S.C. § 1361 will not provide subject matter jurisdiction. Chaudry v. Chertoff, No. 06-1303, 2006 WL 2670051, at *2 (D. Minn. Sept. 18, 2006), citing Castillo, 445 F.3d at 1060. USCIS does not have a duty to conduct an interview on an application for naturalization within a particular period of time. The naturalization statutes and regulations are silent as to this. Alzuraiki v. Heinauer, 544 F.Supp. 2d 862, 866 (D. Neb. 2008) (recognizing no “clear, Case 4:16-cv-01015-DW Document 8 Filed 01/23/17 Page 10 of 22 11 nondiscretionary duty to adjudicate naturalization applications . . . prior to the interview . . . within a reasonable time . . . USCIS has no such duty”); see also Saini v. Heinauer, 552 F.Supp. 2d 974 (D. Neb. 2008) (same); cf Chaudry, 2006 WL 2670051, at *2 (finding no “clear and indisputable right to immediate adjudication” of adjustment application while background checks were pending). Congress mandated, however, that once the naturalization examination is complete, the agency should make a determination of the application within 120 days. 8 U.S.C. § 1447(b). Specifically, once USCIS conducts a naturalization interview, the agency has 120 days to reach a decision before the naturalization applicant may petition the district court. 8 U.S.C. § 1447(b). In stark contrast, Congress has not set a clear deadline for the agencies to act on naturalization applications while background investigations are still pending, and before USCIS has interviewed the applicant. Reading a processing time into the law would be contrary to Congress’s intent. It would require the agency to immediately end its investigation whenever a naturalization applicant grew impatient and filed a mandamus action. This is surely not the result Congress intended. E.g., Shalabi v. Gonzales, 2006 WL 3032413, at *5 (E.D. Mo. Oct. 23, 2006) (“A background check that is rushed or incomplete due to an artificial, court imposed deadline would not meet the statutory and regulatory requirements of a ‘full criminal background check’ before the USCIS can make a determination on an application.”). The Supreme Court has long recognized that applications for immigration benefits may take a very long time to complete where such sensitive investigations are required. INS v. Miranda, 459 U.S. 14, 18 n. 4 (1982) (rejecting an alien’s claim that an 18 month processing of his wife’s I-485 application was too long and emphasizing “[w]e cannot discount the need for careful investigation by the INS that these petitions demand.”). Background checks of naturalization applicants are indisputably important for security reasons and require careful Case 4:16-cv-01015-DW Document 8 Filed 01/23/17 Page 11 of 22 12 examination. Because a court-imposed deadline may require the agency to rush its processing, it would run counter to the “need for careful investigation” in conducting background checks of naturalization applicants. Miranda, 459 U.S. at 18 n.4. Additionally, reading a processing time into the law would also be contrary to the well- settled principle of deference to agency functions in security and immigration matters, both of which are implicated in this case. E.g., INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (“[J]udicial deference to the Executive Branch is especially appropriate in the immigration context where officials exercise especially sensitive political functions that implicate questions of foreign relations.” (citing INS v. Abudu, 485 U.S. 94, 110 (1988)); Haig v. Agee, 453 U.S. 280, 292 (1981) (“Matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention.”). Courts find that this principle of deference supports refusing to compel the agencies involved to complete the processing of an application for immigration benefits by a deadline. E.g., Hu v. Chertoff, No. CIV. S-06-2805, 2007 WL 1515067, at *5 (E.D. Cal. May 22, 2007) (“The court is particularly reluctant to reach a contrary interpretation in the area of immigration since control of this area is largely entrusted to the political branches of government[.]”); Safadi v. Howard, 466 F. Supp. 2d 696, 698-701 (E.D. Va. 2006) (noting that “plaintiff’s frustration over the pace of the adjudication process is better addressed to the political branches which, as the Supreme Court has noted, have the responsibility for regulating the relationship between the United States and our alien visitors” (citing Mathews v. Diaz, 426 U.S. 67, 81 (1976)). Relief under the Mandamus Act is therefore inappropriate. IV. This Court should further dismiss the Complaint because it is based on a statutory provision that fails to confer a private right of action. Plaintiff alleges injury because, in his opinion, CARRP violates 8 U.S.C. § 1427 and 8 C.F.R. §§ 316.2, 335.3. See Compl. ¶¶ 10-18, 102-06. The jurisdictional and substantive Case 4:16-cv-01015-DW Document 8 Filed 01/23/17 Page 12 of 22 13 allegations offered by Plaintiff in support thereof do not confer jurisdiction and do not create a private right of action. Private rights of action to enforce alleged violations of federal statutes must be created by Congress. Alexander v. Sandoval, 532 U.S. 275, 287 (2001) (citing Touche Ross & Co. v. Redington, 442 U.S. 560, 578 (1979) (the remedies available to challenge alleged violations of federal statutes are those “that Congress enacted into law”)). Absent an express or implied statutory intent to create a private right to enforce the statute and an accompanying remedy, “a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute.” Alexander, 532 U.S. at 286-87. To determine whether an implied private right of action exists, courts consider whether: (1) the plaintiff is of the class for whose benefit the statute was enacted; (2) there is any indication of legislative intent; (3) it is consistent with the statute’s purpose to allow a private right; and (4) whether the cause of action is “traditionally relegated to state law.” Cort v. Ash, 422 U.S. 66, 78 (1975). The burden is ultimately on the plaintiff to establish that a private right of action exists. Suter v. Artist M., 503 U.S. 347, 363 (1992). Plaintiff here is unable to meet the second and third prongs of the Cort test. Section 1427 outlines the requirements for naturalization. But, the plain language of this statutory provision fails to create an express private right of action. 8 U.S.C. § 1427. Even a cursory reading of § 1427 reveals that the language therein setting forth basic naturalization requirements does not support the finding of an implied private right of action. Moreover, it is generally recognized that legislative intent regarding a private right of action deserves the most weight. Opera Plaza Residential Parcel Homeowners Ass’n v. Hoang, 376 F.3d 831, 834 (9th Cir. 2004). Plaintiff here fails to establish an affirmative legislative intent to create a private Case 4:16-cv-01015-DW Document 8 Filed 01/23/17 Page 13 of 22 14 right of action under 8 U.S.C. § 1427 permitting him to challenge USCIS’s administrative processing of his naturalization application, and he altogether ignores the remedy provided by 8 U.S.C. § 1421(c). The Supreme Court clarified that statutory schemes that provide for private rights of action in some contexts but not others weigh against the finding of an inferred private right of action. Touche Ross, 442 U.S., at 572; see also Universities Research Ass’n v. Coutu, 450 U.S. 754, 773 (1981) (“Congress’ creation of a particular remedy and omission of another suggests its intent not to provide that other remedy.”). Congress decided to create express private rights of action in the INA. E.g., 8 U.S.C. § 1447(b) (specifically allowing naturalization applicants to request a hearing on their naturalization application before a district court under proscribed circumstances). Here, to the extent the Plaintiff believes unauthorized substantive criteria was used to delay his naturalization application, Congress already specified the remedy: de novo review under 8 U.S.C. § 1421(c), once the application is adjudicated, and upon exhausting administrative remedies under 8 U.S.C. § 1447(a). V. This Court should dismiss the Complaint because Plaintiff lacks standing to challenge CARRP. Plaintiff alleges that Defendants applied CARRP processing measures to him in violation of the Naturalization Clause under Article I, Section 8, cl. 4 of the Constitution. Compl. ¶¶ 107- 11. This claim lacks merit. A federal court’s jurisdiction is, in part, limited to a plaintiff having legal and constitutional standing to bring suit and the court must address this before turning to the merits of the case. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 101-02 (1998) (rejecting notion of “hypothetical jurisdiction” and requiring resolution of antecedent Article III jurisdictional questions). The “irreducible constitutional minimum of standing” contains three requirements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). First, a Case 4:16-cv-01015-DW Document 8 Filed 01/23/17 Page 14 of 22 15 plaintiff must have suffered an “injury in fact” – an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Second, there must be a causal connection between the injury and the conduct complained of – the injury has to be “fairly . . . trace[able] to the challenged action of the defendant, and not . . . the result [of] the independent action of some third party not before the Court.” Third, it must be “likely,” as opposed to merely “speculative” that the injury will be “redressed by a favorable decision.” Id. at 560-61 (internal citations omitted). Plaintiff lacks a requisite injury in fact. The Supreme Court makes clear that the necessary injury must be “real and immediate, not ‘conjectural’ or ‘hypothetical.’” City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983). Here, USCIS has yet to issue a decision on his application, Compl. ¶¶ 1, 4, 7, let alone a decision that identifies the statutory bases and legal reasoning for what Plaintiff speculates will be a denial. Plaintiff, thus, does not suffer a “real and immediate” injury for standing purposes. Plaintiff’s allegations regarding CARRP and whether it was even applied to him are speculative and conclusory. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Mere conclusions, labels, or naked assertions will not survive a Rule 12(b)(6) motion to dismiss. Id. Accordingly, Plaintiff has not asserted a viable claim under Article I, Section 8, cl. 4 of the Constitution, and the Court should dismiss his claims. VI. This Court should dismiss Plaintiff’s complaint because he fails to state a claim in accordance with the APA. The APA requires that “[w]ith due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a Case 4:16-cv-01015-DW Document 8 Filed 01/23/17 Page 15 of 22 16 matter presented to it.” 5 U.S.C. § 555(b). Further, “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review there.” 5 U.S.C. § 702. “Agency action made reviewable to statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” 5 U.S.C. § 704. When judicial review is proper, “[t]he reviewing court shall compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706. The APA does not apply where: (1) statues preclude judicial review; or (2) agency action is committed to agency discretion by law. 5 U.S.C. § 701(a). A. Plaintiff’s claims cannot be redressed under the APA. Plaintiff’s APA claims fails for several reasons. As a threshold matter, the APA’s processing provision does not apply to immigration proceedings. Immigration proceedings are generally governed by carefully designed procedures crafted by Congress, which include provisions that may mirror provisions in the APA – such as the 120-day trigger Congress adopted in 8 U.S.C. § 1447(b). The Supreme Court found, in other contexts, that where Congress has set the procedures in immigration proceedings, the processing provisions of the APA do not apply. Ardestani v. INS, 502 U.S. 129, 133 (1991) (declaring that “immigration proceedings . . . are not governed by the APA”); Marcello v. Bonds, 349 U.S. 302, 307-09 (1955). Second, USCIS can only be compelled to act under § 706(1) of the APA if it withheld action that is “legally required.” Alzuraiki v. Heinauer, 544 F. Supp. 2d 862, 865 (D. Neb. 2008) (citing Norton, 542 U.S. at 63). In this case, USCIS is not required to take action on Plaintiff’s naturalization application during the background check process, and prior to the applicant’s interview by USCIS. As discussed above, there is no clear, nondiscretionary duty Case 4:16-cv-01015-DW Document 8 Filed 01/23/17 Page 16 of 22 17 on USCIS to adjudicate naturalization applications prior to the applicant’s interview – the only trigger for the 120-day period under 8 U.S.C. § 1447(b). Third, an action seeking to compel agency action pursuant to the APA is subject to the same practical considerations as an action in mandamus. Because factors such as agency deference and national security are inherent in naturalization application background investigations and militate against mandamus relief in this case, Plaintiff cannot successfully state a claim under the APA. Moreover, Congress provided an effective remedy under § 1447(b) for all naturalization applicants. By its terms, the APA only provides a right to judicial review of all “final agency actions for which there is no adequate remedy in a court.” 5 U.S.C. § 704. Since § 1447(b) provides “an adequate remedy in a court,” Plaintiff fails to state a claim under the APA. Fourth, the APA does not apply to agency actions that are “committed to agency discretion by law,” 5 U.S.C. § 701(a)(2), or where “the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.” Heckler v. Chaney, 470 U.S. 821, 830 (1985). Courts found, for example, that the APA does not permit judicial review of an agency’s conduct of an investigation where the governing statute imposed no significant limitations on the conduct of the investigation. Marlow v. United States Dep’t of Ed., 820 F.2d 581, 582-83 (2d Cir. 1987); Giacobbo v. Biermann, 780 F. Supp. 33 (D.D.C. 1992), aff’d, 1992 WL 309042 (D.C. Cir. 1992). Addressing background investigations of naturalization applicants, Congress has not established any meaningful standards by which to measure the agency’s progress. Congress has not given any direction to USCIS as to how far and to what extent it should pursue its investigation. Such investigations are “committed to agency discretion” for purposes of 5 U.S.C. § 701(a)(2). Case 4:16-cv-01015-DW Document 8 Filed 01/23/17 Page 17 of 22 18 Fifth, the extent to which USCIS pursues such an investigation is a matter of judgment relating to national security concerns, which require administrative expertise. Courts routinely rely on § 701(a)(2) in ruling that the APA does not apply to agency actions that involve the exercise of judgment relating to national security. Merida Delgado v. Gonzales, 428 F.3d 916, 920 (10th Cir. 2005) (finding no jurisdiction under the APA where the plaintiff challenged a denial of flight training, and explaining that “[t]he fact that the challenged statute concerns national security provides additional support for our conclusion that judicial review is unavailable. It is rarely appropriate for courts to intervene in matters closely related to national security.”); see also Webster v. Doe, 486 U.S. 592 (1988) (finding no APA jurisdiction to review the CIA’s dismissal of an employee); Beattie v. Boeing Co., 43 F.3d 559 (10th Cir. 1994) (refusing review of a decision to bar a security clearance). In this case, USCIS’s judgment in the investigation of national security concerns extends to the conduct of background investigations of naturalization applicants. In light of this, Plaintiff fails to state claims under the APA. B. Plaintiff cannot seek judicial review under the APA because Defendants’ actions are not “final agency actions.” For an action to be “final” and thus reviewable under the APA, the action must: (1) “mark the ‘consummation’ of the agency’s decision-making process;” and (2) the action “must be one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’” Bennett v. Spear, 520 U.S. 154, 178 (1997) (citations omitted). To determine whether the agency’s decision-making process consummated, courts must ascertain whether the agency “rendered its last word on the matter.” Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 478 (2001) (quoting Harrison v. Ppg Indus., 446 U.S. 578, 586 (1980)). No decision has been made in Plaintiff’s application, and the thorough investigation of his background that Case 4:16-cv-01015-DW Document 8 Filed 01/23/17 Page 18 of 22 19 may have been triggered by security concern indicators is mandated by statute. 8 U.S.C. § 1446(a), (b). N-400 adjudications simply may not take place without completion of a background investigation. Pub. L. No. 105-119, Title I, 111 Stat. 2448 (Nov. 26, 1997); 8 C.F.R. § 335.2(b). Because CARRP is not a final agency action, this Court should dismiss Plaintiff’s APA claims. C. USCIS’ investigation requirements and processing guidelines do not violate informal rulemaking procedural requirements of the APA. Plaintiff alleges USCIS violated § 553 of the APA by failing to engage in notice and comment rulemaking when it adopted the CARRP process. See Compl. ¶¶ 116-20. This Court should not credit this argument because CARRP is an internal, non-legislative rule of agency procedure or practice that is explicitly exempt from notice and comment rulemaking. The APA exempts “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice” from the procedural requirements of notice and comment rulemaking. 5 U.S.C. § 553(b)(1)(A). “In keeping with the type of action Congress sought to exempt, a matter ‘relating to practice or procedure’ means technical regulation of the form of agency action and proceedings.” Pickus v. United States Board of Parole, 507 F.2d 1107, 1113 (D.C. Cir. 1974). This category includes actions taken for processing applications, but not those actions that substantially affect the rights of those over whom the agency exercises authority, e.g., adjudication of the pending application. Batterton v. Marshall, 648 F.2d 694, 707 (D.C. Cir. 1980). The statutory requirement of a background investigation and the substantive naturalization requirements remain unchanged. CARRP processes, thus, do not “substantially affect private parties and resolve important issues without the beneficial input that those parties could provide.” National Ass’n of Home Health Agencies v. Schweiker, 690 F.2d 932, 950 (D.C. Case 4:16-cv-01015-DW Document 8 Filed 01/23/17 Page 19 of 22 20 Cir. 1982). Accordingly, Plaintiff’s assertion of a violation of the APA’s notice and comment procedure has no basis in law, and this Court should dismiss such claims. VII. This Court should dismiss Plaintiff’s constitutional claims because he fails to articulate a colorable procedural due process claim. Plaintiff’s claim, Compl. ¶¶ 121-25, that USCIS failed to provide him notice of his alleged inclusion in CARRP is insufficient to allege a colorable Fifth Amendment procedural due process violation. Plaintiff has not and cannot articulate the deprivation of a cognizable liberty interest. Etchu-Njang v. Gonzales, 403 F.3d 577, 585 (8th Cir. 2005) (holding that an alien states a Fifth Amendment Due Process Clause claim “only when he has been deprived of a protected liberty interest”). It is black-letter law that “[t]he requirements of procedural due process apply only to the deprivation of interests encompassed by the [Constitution’s] protection of liberty and property.” Board of Regents v. Roth, 408 U.S. 564, 569 (1972). To have a protected interest in a benefit, “a person clearly must have more than an abstract need or desire for it.” Id. at 577. Rather than a unilateral expectation, an individual “must . . . have a legitimate claim of entitlement to” the purported benefit. Id. Plaintiff does not have such claim of entitlement. No entitlement exists in citizenship before the privilege is actually conferred on a non- citizen. The Supreme Court explained that “‘[n]o alien has the slightest right to naturalization unless all statutory requirements are complied with.’” Fedorenko v. U.S., 449 U.S. 490, 506 (1981). Because USCIS’s N-400 adjudication process is still on-going, Plaintiff cannot establish actual entitlement to citizenship, and any challenge to any claim related to that process must wait until such time as the agency issues a final agency action and Plaintiff exhausts his administrative remedies. Where there is no protected interest in Plaintiff’s ability to naturalize, the mere fact that the INA and its applicable regulations flesh out naturalization processes and Case 4:16-cv-01015-DW Document 8 Filed 01/23/17 Page 20 of 22 21 requirements does not create a protected interest in the ability to naturalize. Accordingly, this Court should dismiss Plaintiff’s due process claim. CONCLUSION For the reasons stated above, Defendants respectfully requests this Court dismiss the Complaint. Respectfully submitted, TAMMY DICKINSON United States Attorney /s/ Jeffrey P. Ray JEFFREY P. RAY Deputy United States Attorney Missouri Bar No. 35632 JOYCE R. BRANDA Acting Assistant Attorney General Civil Division WILLIAM C. PEACHEY Director Office of Immigration Litigation GISELA A. WESTWATER Office of Immigration Litigation Senior Litigation Counsel District Court Section /s/ Gladys M. Steffens Guzmán GLADYS M. STEFFENS GUZMÁN Office of Immigration Litigation Department of Justice, Civil Division Trial Attorney, District Court Section 450 5th Street, NW Washington, DC 20001 Telephone: (202) 305-7181 E-Mail: gladys.steffens-guzman@usdoj.gov Counsel for Respondent Case 4:16-cv-01015-DW Document 8 Filed 01/23/17 Page 21 of 22 22 CERTIFICATE OF SERVICE I hereby certify that a true and exact copy of the foregoing motion was electronically filed with the Clerk of the Court using the CM/ECF system on January 23, 2017 which then sent notification to: James O. Hacking, III HACKING LAW PRACTICE, LLC 34 North Gore, Suite 101 St. Louis, Missouri 63119 ATTORNEYS FOR PLAINTIFF BEHRANG PAKSADEH on this January 23, 2017. The original of this motion will be maintained by defendants’ counsel of record. /s/ Gladys M. Steffens Guzmán GLADYS M. STEFFENS GUZMÁN Office of Immigration Litigation Department of Justice, Civil Division Trial Attorney, District Court Section Counsel for Respondent Case 4:16-cv-01015-DW Document 8 Filed 01/23/17 Page 22 of 22