Pulotov v. US Citizenship And Immigration Services et al

MOTION for Summary Judgment and Memorandum of points and authorities in support of Plaintiff's motion for summary judgment

E.D. Pa.June 2, 2017

2:16-cv-06067-JHS IN THE UNITED STATES FEDERAL COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA PULOTOV NEMAT, A206-472-842 Vs. US CITIZENSHIP AND IMMIGRATION SERVICES; et al., PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT TATIANA S. ARISTOVA, ESQ. Attorney for Petitioner/Appellant Khavinson & Associates, P.C. 10 Schalk’s Crossing Road, Suite 501-295 Plainsboro, NJ 08536 Phone: (215) 355-9095/Fax: (215) 355-9109 Case 2:16-cv-06067-JHS Document 13 Filed 06/02/17 Page 1 of 33 i TABLE OF CONTENTS Plaintiff’s Motion for Summary Judgment………………………….. 1 Memorandum of Points and Authorities in Support of Plaintiff’s Motion for Summary Judgment……………………………………… 2 A. Statement of Material Facts……………………………………...... 2 I. Description of the Parties………………………………………….. 2 II. Facts Supporting Venue and Jurisdiction…………………………. 4 Jurisdiction……………………………………………………………. 4 Venue…………………………………………………………………. 5 III. Other Material Facts………………………………………………. 6 Statement of Facts…………………………………………………….. 6 Legal Background…………………………………………………….. 9 Asylum Application Process………………………………………….. 9 EAD Application Process for Applicants in Removal Proceedings…... 10 The Asylum EAD Clock……………………………………………….. 11 The Effect of Administrative Closure on EAD Eligibility…………….. 13 B. Introduction and Overview of the Argument……………………….. 15 C. Summary Judgment Standard……………………………………….. 16 Case 2:16-cv-06067-JHS Document 13 Filed 06/02/17 Page 2 of 33 ii D. Argument……………………………………………………………. 19 E. Conclusion…………………………………………………………….. 22 Order……………………………………………………………………… 24 Certificate of Service……………………………………………………… 25 TABLE OF AUTHORITIES Cases Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)……………………………………………………. 17, 18 B. H. et. al., v. U.S. Citizenship and Immigration Services, et.al., No. CV11-2108-RAJ (W.D. Wash. 2013)………………………………. 8, 11 Boyle v. Cnty f Allegheny, 139 F.3d 386 (3rd Cir. 1998)……………………………………………… 17 Bowen v. Mich. Academy of Family Physicians, 467 U.S. 667 (1986)……………………………………………………….. 19 Brandon, Jones, Sandall, Zeide, Kohn, Chalal & Musso, P.A. v. MedPartners, Inc., 312 F.3d 1349 (11th Cir. 2002)…………………………………………… 14 Case 2:16-cv-06067-JHS Document 13 Filed 06/02/17 Page 3 of 33 iii Celotex Corp. v. Catrett, 477 U.S. 317 (1986)……………………………………………………… 17, 18 Cf. CitiFinancial Corp. v. Harrison, 453 F.3d 245 (5th Cir. 2006)……………………………………………… 14 Commissioner, Immigration and Naturalization Service v. Jean, 496 U.S. 154 (1990)……………………………………………………… 5 Conoshenti v. Pub. Serv. Elec, & Gas Co ., 364 F.3d 135 (3rd Cir. 2004)……………………………………………… 17 Dees v. Billy, 394 F.3d 1290 (9th Cir. 2005)……………………………………………. 13 Matsushita Elec. Indus. Co v. Zenith Radio Corp, 475 U.S. 574 (1986)……………………………………………………… 17 Motor Vehicle Mfrs. Ass’n,v. State Farm Mut. Auto. Inc. Co., 463 U.S. 29 (1983)……………………………………………………… 18 N. L. R. B. v. Ashkenazy Property Management Corp , 817 F.2d 74 (9th Cir. 1987)….…………………………………………… 14 Penn W. Assocs, Inc. v. Cohen, 371 F.3d 118 (3rd Cir. 2004) ……………………………………………… 14 Petruzzi’s IGA Supermkts., Inc. v. Darling-Del. Co. Inc., 998 F.2d 1224 (3rd Cir. 1993)…………………………………………….. 17 Case 2:16-cv-06067-JHS Document 13 Filed 06/02/17 Page 4 of 33 iv Rite Aid of Pa., Inc. v. Haoustoun, 171 F.3d 842 (3rd Cir. 1999)……………………………………………… 18 South La. Cement, Inc. v. Van Aalst Bulk Handling, B. V., 383 F.3d 297 (5th Cir. 2004)…………………………………………. 14 Tigg Corp. v. Dow Corning Corp., 822 F.2d 358 (3rd Cir. 1987)…………………………………………… 17 United States v. Diebold, Inc., 369 U.S. 654 (1962)…………………………………………………… 17 Statutes and Regulation 5 U.S.C. §504………………………………………………………… 5 5 U.S.C. §701………………………………………………………… 4, 5, 16, 22 5 U.S.C. §702………………………………………………………… 16 5 U.S.C. §706………………………………………………………… 18 8 U.S.C. §1101………………………………………………………… 4, 9 8 U.S.C. §1158………………………………………………………… 9, 10 28 U.S.C. §1331……………………………………………………… 5 28 U.S.C. §1361……………………………………………………… 5 Case 2:16-cv-06067-JHS Document 13 Filed 06/02/17 Page 5 of 33 v 28 U.S.C. §1651……………………………………………………… 5 28 U.S.C. §2201……………………………………………………… 16 28 U.S.C. §2202……………………………………………………… 16 8 C.F.R. §208.3………………………………………………………. 11 8 C.F.R. §1208.3………………………………………………………. 11 8 C.F.R. §208.7………………………………………………………. 9, 10, 11, 12, 20, 22 8 C.F.R. §208.9………………………………………………………. 12 8 C.F.R. §274a. 12……………………………………………………. 11, 15, 22 8 C.F.R. §274a. 13…………………………………………………… 10, 11, 22 8 C.F.R. §1208.4………………………………………………………. 9 8 C.F.R. §1208.7………………………………………………………. 9, 10, 11, 12, 22 8 C.F.R. §1208.9………………………………………………………. 12 USCIS Ombudsman Report dated 08/26/2011………………………… 8 Memorandum from Office of the Chief Immigration Judge, Operating Policies and Procedures Memorandum (OPPM) 05-07: Definitions and Use of Adjournment, Call-up and Case Identification Codes Case 2:16-cv-06067-JHS Document 13 Filed 06/02/17 Page 6 of 33 vi htpps://www.justice.gov/sites/default/files/eoir/legacy/2005/06/16/05-07.pdf 12 Rule 56 of the Federal Rules of Civil Procedure Fed. R. Civ. P. 56(a)…. 16, 17 Case 2:16-cv-06067-JHS Document 13 Filed 06/02/17 Page 7 of 33 1 IN THE UNITED STATES FEDERAL COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA PULOTOV NEMAT, A206-472-842 Vs. Case No. 2:16-cv-06067-JHS US CITIZENSHIP AND IMMIGRATION SERVICES; et al., PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Plaintiff, Pulotov Nemat, hereby moves for summary judgment based on attached memorandum of points and authorities. Plaintiff respectfully requests that the Court grant his motion for summary judgment and order the USCIS to approve his form I-765 Application for Employment Authorization, Case #LIN1690830399. Respectfully submitted, /s/Tatiana S. Aristova, Attorney for Plaintiff, Khavinson & Associates, PC Case 2:16-cv-06067-JHS Document 13 Filed 06/02/17 Page 8 of 33 2 IN THE UNITED STATES FEDERAL COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA PULOTOV NEMAT, A206-472-842 Vs. Case No. 2:16-cv-06067-JHS US CITIZENSHIP AND IMMIGRATION SERVICES; et al., MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT On November 18, 2016, Plaintiff Pulotov Nemat, brought an action against Defendants, Jefferson B. Sessions III, U.S. Attorney General, John F. Kelly, Secretary, U.S. Department of Homeland Security, James McCament, Director, U.S. Citizenship and Immigration Service (“USCIS) and Juan Osuna, Director, Executive Office for Immigration Review, challenging the USCIS’ denial of his form I-765 Application for Employment Authorization, Case #LIN1690830399. A. STATEMENT OF MATERIAL FACTS I. DESCRIPTION OF THE PARTIES 1. Plaintiff/Petitioner, Pulotov Nemat, is a private individual, residing in Case 2:16-cv-06067-JHS Document 13 Filed 06/02/17 Page 9 of 33 3 Philadelphia, PA. He petitions this Court to issue a decision requiring the US CIS to reverse the denial of the above referenced I-765 Application for Employment Authorization document (hereinafter “EAD”). 2. Defendant US CIS, an agency of the DHS, is responsible for the timely and accurate processing and adjudication of applications for employment authorization. In making its determination to grant or deny applications for employment authorization, US CIS is responsible for the accurate calculation of the asylum EAD clock and for determining whether there has been a delay requested or caused by the applicant for purposes of the asylum EAD clock. 3. Defendant James McCAMENT is the Director of the US CIS and has ultimate responsibility for the timely and accurate processing and adjudication of applications for employment authorization and for accurate calculation of the asylum EAD clock. He is sued in his official capacity only. 4. Defendant, John F. KELLY is the Secretary of the DHS and has ultimate responsibility for the administration and enforcement of the INA and all other laws relating to the immigration of noncitizens. He is sued in his official capacity only. 5. Defendant Executive Office for Immigration Review (EOIR) is a component of the US DOJ responsible for conducting removal hearings of noncitizens, i.e., proceedings to remove or deport them from the United States. Asylum applications Case 2:16-cv-06067-JHS Document 13 Filed 06/02/17 Page 10 of 33 4 are filed with EOIR, in the immigration court having jurisdiction over the case, when an applicant has been placed in removal proceedings. With respect to asylum cases over which it has jurisdiction, EOIR has responsibility for the accurate calculation of the asylum EAD clock and for determining whether there has been a delay requested or caused by the applicant for purposes of the asylum EAD clock. 6. Defendant Jefferson B. SESSIONS III is the Attorney General of the United States and is responsible for the Department of Justice and its component agencies, including EOIR. EOIR administers the U.S. immigration court system under delegated authority from the Attorney General. He is sued in his official capacity only. 7. Defendant Juan OSUNA is the Director of EOIR and has ultimate responsibility for overseeing immigration court proceedings, appellate reviews, and administrative hearings. He is sued in his official capacity only. II. FACTS SUPPORTING VENUE AND JURISDICTION JURISDICTION 8. This action arises out of the Immigration and Nationality Act (INA), 8 U.S.C. §1101, et. seq. It also arises out of the Administrative Procedures Act (APA), 5 U.S.C. sec. 701, et seq. Case 2:16-cv-06067-JHS Document 13 Filed 06/02/17 Page 11 of 33 5 9. This Court has jurisdiction to consider this Complaint pursuant to 28 U.S.C. §§1331, 1361, 28 U.S.C. §1651 (the All Writs Act) and 5 U.S.C. §701 et seq. Plaintiff is currently being denied form I-765 Application for Employment Authorization in violation of the laws of the United States. 10. To the extent that the Government's actions in this matter are not supported by substantial justification, attorney’s fees are appropriate. The Equal Access to Justice Act, as amended, 5 U.S.C. §504 and 28 U.S.C. §2412 (the "EAJA"), provides for the award of costs and attorney's fees to a prevailing party in litigation against the United States or one of its agencies. The EAJA has been invoked to justify the award of attorney’s fees and costs in immigration cases. See, e.g., Commissioner, Immigration and Naturalization Service v. Jean, 496 U.S. 154 (1990). VENUE 11. Venue properly lies in the Eastern District of Pennsylvania. Defendants conduct business in Philadelphia, PA. Plaintiff also resides in this jurisdiction. Case 2:16-cv-06067-JHS Document 13 Filed 06/02/17 Page 12 of 33 6 III. OTHER MATERIAL FACTS STATEMENT OF FACTS 12. Plaintiff arrived to the US on or about 01/21/2006. A.R. 8, 19-20. On or about 10/07/2014, he was placed in removal proceedings due to overstay of his visa. On or about 05/06/2015, Plaintiff filed form I-589 Application for Asylum and for Withholding of Removal defensively, with the US Immigration Court. A.R. 1. 13. On or about 09/02/2015, Plaintiff’s removal proceedings were administratively closed by the Immigration Judge (hereinafter, “the IJ”) at the joint request of the Plaintiff and the government. A.R. 1, 17. Plaintiff was never advised that this action would stop the clock in his case and was never given an opportunity to contest this stoppage. On 09/16/2016, the USCIS denied Plaintiff’s application for an employment authorization (hereinafter, “EAD”) application, claiming that clock in his case was stopped when the IJ administratively closed his case. A.R. 1-2. The decision specifically stated that USCIS regulations do not provide for an appeal of this decision. A.R. 2. 14. As noted above, Plaintiff filed form I-589, Application for Asylum and for Withholding of Removal, before an IJ in Philadelphia, PA on 05/06/2015, because it was note a delay caused by Plaintiff. A.R. 1. His “clock” should have started running when the IJ administratively closed Plaintiff’s asylum proceedings through an official order on 09/02/2015. A.R. 17. Plaintiff agreed to the administrative Case 2:16-cv-06067-JHS Document 13 Filed 06/02/17 Page 13 of 33 7 closing of his asylum application with the understanding from the IJ and the US DHS trial attorney that Plaintiff would be eligible to receive work authorization. At no point was Plaintiff advised that the IJ’s order would stop his asylum clock. The application was administratively closed by the IJ at the joint consent of the US DHS trial attorney and the court. Even if Plaintiff’s “clock” for EAD eligibility purposes did not run between 05/06/2015 and 09/02/2015, it should be considered to have started to run, as per previously submitted AAO decision dated 09/06/2013, after 09/02/2015. A.R. 21-25. Plaintiff accumulated the required 180 days on the “clock”, at the latest, on or about 03/02/2016. 15. On 07/14/2016, Plaintiff submitted Form I-765, Employment Authorization (EAD) application. A.R. 8-46. On 09/16/2016, the US CIS denied Plaintiff’s application, claiming that since the IJ has stopped the clock in Plaintiff’s asylum case when his removal proceedings were administratively closed, Plaintiff was not eligible for EAD. A.R. 1-2. 16. Defendants’ decision, if any, to stop the EAD clock in Plaintiff’s case was made without any notice or explanation to the Plaintiff and off the record. Plaintiff did not learn of this asylum EAD clock stoppage until after his EAD application was denied. He was not informed of the reasons why his asylum EAD clock was stopped. The written decision from USCIS denying Plaintiff’s EAD application did not refer to the AAO decision dated 09/06/2013 and did not explain why Plaintiff Case 2:16-cv-06067-JHS Document 13 Filed 06/02/17 Page 14 of 33 8 should be treated differently from the applicant in the AAO decision dated 09/06/2013. A.R. 21-25. Moreover, Plaintiff did not have a meaningful opportunity to contest or remedy improper asylum EAD clock determination in this case, nor is there any administrative mechanism to compel Defendants to issue work authorization despite the fact that the 180-day waiting period in Plaintiff’s case expired. 17. The USCIS Ombudsman recognized that the lack of a mechanism for asylum seekers to acquire accurate information about the amount of time accrued on their asylum EAD clocks creates confusion about employment eligibility. See USCIS Ombudsman Report dated 08/26/2011, at 1, 5-6. Despite the so called “ABT settlement agreement” in B.H. et. al., v. U.S. Citizenship and Immigration Services, et. al., No. CV11-2108-RAJ (W. D. Wash. 2013), Plaintiff’s situation has not been addressed by it and remains problematic. 18. By failing to provide Plaintiff with legally sufficient notice of stoppage of his asylum EAD clock and an adequate opportunity to challenge the improper asylum EAD clock determination in this case, Defendants violated his rights under the Due Process Clause of the Fifth Amendment and the APA. Alternatively, Plaintiff’s Due Process Rights and the APA are violated by US CIS failure to comply with past precedent as dictated by the AAO decision dated 09/06/2013, which deems Case 2:16-cv-06067-JHS Document 13 Filed 06/02/17 Page 15 of 33 9 asylum clock to be running while cases are administratively closed for the convenience of the EOIR and the US DHS. LEGAL BACKGROUND Asylum Application Process 19. Any noncitizen who is in the United States or seeking admission at a port of entry may apply for asylum. 8 U.S.C. §1158(a)(1). An asylum applicant must demonstrate either past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. §§1101(a)(42)(A), 1158(b)(1)(B)(i). 20. Generally, an asylum application must be adjudicated within 180 days after it is filed. USCIS and EOIR are jointly responsible for calculating this 180-day period. 8 C.F.R. §§208.7(a)(2), 1208.7(a)(2). Delay caused by the applicant will toll this period. Id. For asylum applications filed in removal proceedings, EOIR has adopted an asylum adjudications “clock” to track the 180-day waiting period. 21. The asylum application filed in removal proceedings are called “defensive” asylum application. Plaintiff has duly filed his defensive asylum application on 05/06/2015. See 8 C.F.R. §1208.4(b)(3). 22. All defensive asylum applications are adjudicated by immigration judges following a staggered series of hearings, which — due to congested court calendars Case 2:16-cv-06067-JHS Document 13 Filed 06/02/17 Page 16 of 33 10 — may span months or even years after the initial filing of an asylum application. See 8 C.F.R. §§208.14(a), 1208.14(a). EAD Application Process for Applicants in Removal Proceedings 23. The INA (Immigration and Nationality Act) authorizes DHS to adopt regulations authorizing employment for asylum applicants. 8 U.S.C. §1158(d)(2). While regulations prescribe that USCIS has discretion to grant or deny EAD applications to well over a dozen categories of immigrants and non-immigrants, the regulations afford USCIS no such discretion with respect to EAD applications filed by asylum applicants. See 8 C.F.R. §274a.13(a)(1) and (2). Thus, an asylum applicant who has met the regulatory requirements has a right to work authorization. Id. 24. The only regulatory eligibility requirements for an EAD are that the asylum applicant is not an aggravated felon; that the applicant has filed a complete asylum application; that the asylum application has not been denied at the time the EAD application is decided; and that, absent exceptional circumstances, the asylum applicant has not failed to appear for an interview or hearing. See 8 C.F.R. §§208.7(a), 1208.7(a). An asylum application is complete for purposes of the 180- day asylum EAD clock when it contains answers to all of the questions on the application form, is signed, and is accompanied by the materials specified in the Case 2:16-cv-06067-JHS Document 13 Filed 06/02/17 Page 17 of 33 11 regulations and the instructions to the application form. 8 C.F.R. §§208.3(c)(3), 1208.3(c)(3). If a defensive asylum application is not adjudicated by an immigration judge within 180 days of its filing (not including periods of applicant- caused delay), an applicant who has satisfied these eligibility requirements has a right to an EAD. 25. The US CIS is responsible for deciding all EAD applications for asylum applicants, including those in removal proceedings. An application for employment authorization, Form I-765, may be filed with the US CIS at any time after the first 150 days of the waiting period for an EAD. 8 C.F.R. §208.7. 26. Defendants have adopted regulatory requirements governing US CIS adjudication of EAD applications filed by asylum applicants. 8 C.F.R. §§208.7, 274a.12(c)(8), 274a.13(a), and 1208.7. These policies and practices have been modified by so called “ABT settlement agreement” in B.H. et. al., v. U.S. Citizenship and Immigration Services, et. al., No. CV11-2108-RAJ (W. D. Wash. 2013). The Asylum EAD clock 27. For asylum applicants, the 180-day asylum EAD clock begins to run on the date the applicant files a complete asylum application. 8 C.F.R. §§208.7(a)(1), 1208.7(a)(1), 208.3-4, 1208.3-4. Case 2:16-cv-06067-JHS Document 13 Filed 06/02/17 Page 18 of 33 12 28. The asylum EAD clock continues to run unless there is a “delay requested or caused by the applicant,” 8 C.F.R. §208.7(a)(2), 8 C.F.R. §1208.7(a)(2), or unless the asylum application is denied before the EAD application is adjudicated. 8 C.F.R. §§208.7(a)(1); 1208.7(a)(1). Applicant-caused delays include an applicant’s “failure without good cause to follow the requirements for fingerprint processing,” and any period during which an asylum applicant fails to appear to receive and acknowledge receipt of a USCIS asylum officer’s decision. 8 C.F.R. §§208.7(a)(2), 208.9(d), 1208.7(a)(2), 1208.9(d). 29. Defendants USCIS and EOIR are jointly responsible for calculating the 180- day waiting period for EAD eligibility for asylum applicants. 8 C.F.R. §§208.7(a)(2), 1208.7(a)(2). 30. EOIR’s Operating Policies and Procedures Memoranda (OPPMs) reiterate that only applicant-caused delays prevent the asylum clock from running and that, in such circumstances, the clock is stopped only for the number of days during which the delay continues. OPPM 11-02, at 7-10; “Memorandum from Office of the Chief Immigration Judge, Operating Policies and Procedures Memorandum (OPPM) 05-07: Definitions and Use of Adjournment, Call-up and Case Identification Codes”, available at https://www.justice.gov/sites/default/files/eoir/legacy/2005/06/16/05-07.pdf. Case 2:16-cv-06067-JHS Document 13 Filed 06/02/17 Page 19 of 33 13 31. Defendant EOIR purports to only administer an asylum clock to track the statutory 180-day adjudication period and not to track the 180-day period for EAD eligibility for asylum applicants. Nevertheless, US CIS in Plaintiff’s case relied, incorrectly, on EOIR’s clock. EOIR’s asylum adjudication clock was erroneously relied upon by Defendant USCIS for the purpose of EAD eligibility determination in Plaintiff’s case. Plaintiff believes that USCIS erred in relying upon the 180-day clock maintained by EOIR to make a determination about Plaintiff’s employment eligibility. Instead, the US CIS should have followed the AAO decision dated 09/06/2013, should have performed its own EAD clock calculation, and should have found that Plaintiff has accumulated over 180 days for purposes of EAD eligibility, despite the fact that EOIR clock was stopped in his case. The effect of Administrative Closure on EAD eligibility 32. In this case, Plaintiff's judicial proceedings with regard to his asylum request were administratively closed on 09/02/2015. Neither the INA nor agency regulations take into consideration the effect of administratively closing a request for asylum or withholding of removal. However, the issue of administrative closure has been considered by several of the Federal courts. The Ninth Circuit has noted that "[a]n order administratively closing a case is a docket management tool that has no jurisdictional effect." Dees v. Billy, 394 F.3d 1290, 1294 (9th Cir. 2005). The Third Circuit has found that "an order merely directing that a case be marked Case 2:16-cv-06067-JHS Document 13 Filed 06/02/17 Page 20 of 33 14 closed constitutes an administrative closing that has no legal consequence other than to remove that case from the [court’s] active docket." Penn W. Assocs., Inc. v. Cohen, 371 F.3d 118, 128 (3d Cir. 2004). Additionally, the Eleventh Circuit concluded that an administratively closed case had no legal effect because “the order appealed from is not final.” Brandon, Jones, Sandall, Zeide, Kohn, Chalal & Musso, P.A. v. MedPartners, Inc., 312 F.3d 1349, 1355 (11th Cir. 2002). Finally, the Fifth Circuit has written: "we hold that administratively closing a case is not a dismissal or final decision." South La. Cement, Inc. v. Van Aalst Bulk Handling, B. V. 383 F.3d 297, 302 (5th Cir. 2004); cf. CitiFinancial Corp. v. Harrison, 453 F.3d 245, 250-51 (5th Cir. 2006) (holding that "a fully 'dismissed' case is removed from the docket, terminated indefinitely, and restarted only upon the filing of a new complaint. That is not the case here.") Based on the above, Plaintiff’s case should clearly be considered pending before the adjudicative tribunal while it remains administratively closed. 33. USCIS is bound by the Act, agency regulations, precedent decisions of the agency, and published decisions from circuit courts of appeals from whatever circuit the action arose. See N.L.R.B. v. Ashkenazy Property Management Corp, 817 F.2d 74, 75 (9th Cir. 1987) (administrative agencies are not free to refuse to follow precedent in cases originating within the circuit). Case 2:16-cv-06067-JHS Document 13 Filed 06/02/17 Page 21 of 33 15 34. As per AAO’s decision dated 09/06/2013, AAO, which is an appellate division of US CIS, agreed that even though the asylum claim may remain administratively closed for an unknown or indefinite period of time, thus providing the applicant with a seemingly indefinite employment authorization, as per AAO, a joint request administratively closing the asylum request makes the asylum application remain “undecided” within the meaning of 8 C.F.R. §274a.12(c)(8), because the administrative closure is an interlocutory or non-final order rather than a dismissal of the case. AAO held that EAD “clock” should run, or continue to run, while asylum claim remains administratively closed. B. INTRODUCTION AND OVERVIEW OF THE ARGUMENT Plaintiff respectfully submits that the US CIS denial of his Application for Employment Authorization, Case #LIN1690830399, was improper and against the law, and respectfully requests that this Court order the US CIS to reverse the denial and approve the above referenced application on behalf of Pulotov Nemat. In the denial of Plaintiff’s EAD application, Defendants have acted unlawfully and in violation of their own policy as stated in the AAO decision dated 09/06/2013. Defendants’ miscalculation of Plaintiff’s EAD clock and/or their denial of his EAD application caused and will continue to cause irreparable injury Case 2:16-cv-06067-JHS Document 13 Filed 06/02/17 Page 22 of 33 16 to Plaintiff. Plaintiff has no other plain, speedy, or adequate remedy at law. Defendants’ denial constitutes final agency action for the purpose of the APA, 5 U.S.C. § 701, et seq. The INA and applicable regulations provide for no administrative appeal from a denial of an EAD application. Accordingly, Plaintiff has exhausted his administrative remedies. Plaintiff has suffered a “legal wrong” and has been “adversely affected or aggrieved” by agency action for which there is no other adequate remedy in a court of law. Therefore, Plaintiff has satisfied the requirements stated in 5 U.S.C. §§702 and 704. Based on the argument stated below, this Court should grant Plaintiff relief under 28 U.S.C. §§2201, 2202 and 5 U.S.C. §702 and order that Defendants grant his EAD application. C. SUMMARY JUDGMENT STANDARD A party may move for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 56 (a). Summary Judgment must be granted if there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any Case 2:16-cv-06067-JHS Document 13 Filed 06/02/17 Page 23 of 33 17 material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). A factual dispute is “material” only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For an issue to be “genuine,” a reasonable fact-finder must be able to return a verdict in favor of the non-moving party. Id. On summary judgment, the moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145–46 (3d Cir. 2004). It is not the court’s role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. Boyle v. Cnty. of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998) (citing Petruzzi’s IGA Supermkts., Inc. v. Darling-Del. Co. Inc., 998 F.2d 1224, 1230 (3d Cir. 1993)). Rather, the court must consider the evidence, and all reasonable inferences which may be drawn from it, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987). Although the moving party must establish an absence of a genuine issue of material fact, it need not “support its motion with affidavits or other similar materials negating the opponent’s claim.” Celotex Corp. v. Catrett, 477 U.S. 317, Case 2:16-cv-06067-JHS Document 13 Filed 06/02/17 Page 24 of 33 18 323 (1986). It can meet its burden by “pointing out . . . that there is an absence of evidence to support the nonmoving party’s claims.” Id. at 325. If the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden at trial,” summary judgment is appropriate. Celotex, 477 U.S. at 322. Moreover, the mere existence of some evidence in support of the non-movant will not be adequate to support a denial of a motion for summary judgment; there must be enough evidence to enable a jury to reasonably find for the non-movant on that issue. Anderson, 477 U.S. at 249–50. The scope of judicial review of agency rulemaking under the Administrative Procedures Act is governed by “arbitrary and capricious” standard. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). A court may conclude that a regulation is arbitrary and capricious “if the agency relied on facts other than those intended by Congress, did not consider ‘an important aspect’ of the issue confronting the agency, provided an explanation for its decision which ‘runs counter to the evidence before the agency,’ or is entirely implausible.” Rite Aid of Pa., Inc. v. Houstoun, 171 F.3d 842, 853 (3d Cir. 1999). Plaintiff moves for summary judgment on his claim under the Administrative Procedures Act (“APA”), 5 U.S.C. § 706(2)(A)&(B), as the agency’s denial of his I-765 application was arbitrary and capricious. Case 2:16-cv-06067-JHS Document 13 Filed 06/02/17 Page 25 of 33 19 D. ARGUMENT This Court should "begin with the strong presumption that Congress intends judicial review of administrative action.” Bowen v. Mich. Academy of Family Physicians, 476 U.S. 667, 670 (1986). This Court should find that Plaintiff is entitled to a judgment in his favor, because the US CIS denial of his I-765 Application for Employment Authorization, Case #LIN1690830399, is unlawful under the APA, as it was arbitrary and capricious. The US CIS acted arbitrarily and capriciously in refusing to approve the form I-765 application filed by the Plaintiff whereas it has approved the application filed by a similarly situated alien, whose case was considered and EAD eligibility confirmed by the USCIS in AAO decision dated 09/06/2013. US CIS further acted arbitrarily and capriciously in relying on EOIR clock rather thatn on its own calculation of the number days during which Plaintiff’s EAD application was pending. Since the delay in the adjudication of Plaintiff’s asylum application here was not caused by the Plaintiff, but rather is the result of a joint action and agreement of the US DHS trial attorney, the Plaintiff and the EOIR, US CIS acted arbitrarily and capriciously in finding that his EAD eligibility clock was stopped when his case was administratively closed. Case 2:16-cv-06067-JHS Document 13 Filed 06/02/17 Page 26 of 33 20 Agency regulations enumerate three essential elements for the grant of employment authorization to aliens seeking asylum or withholding of deportation or removal: (1) a valid request for asylum or withholding of deportation or removal; (2) the request remains undecided; and (3) 180 days have passed since filing the request, not counting any delays caused by the applicant. See 8 C.F.R. §208.7. Plaintiff has complied with all the requirements stated in this section, and, therefore, his EAD application should have been granted. The mandatory number of 180 days clearly have passed since Plaintiff’s case was administratively closed, as per agency regulation at 8 C.F.R. §208.7(a)(1). USCIS claims that based on the EOIR’s clock, Plaintiff’s EAD eligibility clock was stopped when his case was administratively closed. However, based on the above stated argument, as confirmed by AAO decision dated 09/06/2013, the administrative closure should have no effect on Plaintiff’s eligibility for EAD, and therefore, EAD eligibility “clock” in his case should be considered running, even if Plaintiff’s EOIR clock was somehow stopped when his case was administratively closed. Furthermore, Defendants did not provide legally sufficient notice to Plaintiff when his EOIR clock was stopped. This failure to advise deprived Plaintiff of an opportunity to make an informed decision concerning whether to accept the administrative closure of his case, as well as of an opportunity to address or cure Case 2:16-cv-06067-JHS Document 13 Filed 06/02/17 Page 27 of 33 21 the alleged stoppage of the clock. For example, Plaintiff could have, instead of agreeing to have his case administratively closed on 09/02/2015, accepted the final individual hearing date, which would keep his EOIR clock running, and could have requested and/or accepted administratively closure of his asylum case after 180 days were accumulated on his EOIR clock. Defendants suggested that Plaintiff could “easily” remedy his situation by reopening his asylum application, but this drastic remedy is very different from the situation in which the Plaintiff could have been had he been properly advised of the stoppage of his EOIR clock and/or of its effect on his eligibility for EAD. At this point, reopening asylum would cause Plaintiff to expend significant resources on litigation of his asylum case and face the risk of his claim being denied. Had he been advised of EOIR clock stoppage, he could have kept his case pending before EOIR for additional 180 days, and then have his case administratively closed, still avoiding the significant risks and legal expenses associated with proceeding with his case and still allowing the IJ to deal with more urgent removal cases, while at the same time preserving his EAD eligibility. He is deprived of this option now, because he was not informed of EOIR clock stoppage at the time when the clock was stopped. In this case, Defendants violated regulations governing the issuance of employment authorization documents, including inter alia, 8 C.F.R. Case 2:16-cv-06067-JHS Document 13 Filed 06/02/17 Page 28 of 33 22 §§274a.12(c)(8), 274a.13(a), 208.7, and 1208.7, acted arbitrarily, capriciously and contrary to US CIS own policy and precedent as stated in AAO decision dated 09/06/2013. Defendants deprived Plaintiff of an opportunity to apply for a benefit provided under law without due process i.e., in violation of the Fifth Amendment of the Constitution. Defendants’ denial of Plaintiff’s EAD application resulting from their improper reliance on EOIR clock in adjudication of Plaintiff’s EAD application and failure to properly calculate the number of days during which Plaintiff’s asylum case has been pending, failure to adhere to USCIS established precedent in the form of its prior AAO decision, as well as failure to provide Plaintiff with legally sufficient notice of or an opportunity to contest his EOIR clock stoppage are arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with the law. As such, these actions violate the Administrative Procedure Act, 5 U.S.C. §701, et seq. and the Due process clause. Therefore, this Court should order that Defendants reverse the decision denying Plaintiff’s EAD application. E. CONCLUSION Based on the facts and the legal argument stated in Plaintiffs’ COMPLAINT FOR DECLARATORY JUDGMENT AND PETITION FOR WRIT OF Case 2:16-cv-06067-JHS Document 13 Filed 06/02/17 Page 29 of 33 23 MANDAMUS in this case, as well as in the instant memorandum, this court should issue a summary judgment order in favor of Plaintiff, directing the US CIS to reverse its denial of his form I-765 Application for Employment Authorization, Case #LIN1690830399, and to grant the same. For the foregoing reasons, Plaintiff moves this Court to: 1) grant this motion for summary judgment and deny Defendants’ motion for summary judgment; and 2) issue a declaration stating that Plaintiff is entitled to a grant of his form I- 765 Application for Employment Authorization, Case #LIN1690830399; and 3) order the Bureau of U.S. Citizenship and Immigration Service to issue approval of form I-765 Application for Employment Authorization, Case #LIN1690830399 on behalf of Pulotov Nemat no later than 30 days after entry of the Court’s order; and 4) grant any other relief, including an award of Plaintiff’s attorney’s fees and costs, as the Court may deem just and proper under the circumstances. Respectfully submitted, /s/Tatiana S. Aristova, Attorney for Plaintif Case 2:16-cv-06067-JHS Document 13 Filed 06/02/17 Page 30 of 33 24 IN THE UNITED STATES FEDERAL COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA PULOTOV NEMAT, A206-472-842 Vs. Case No. 2:16-cv-06067-JHS US CITIZENSHIP AND IMMIGRATION SERVICES; et al., ORDER AND NOW, this _______________, upon consideration of the parties’ representation that this matter may be resolved without discovery, it is hereby ORDERED that the Plaintiff’s cross-motion for summary judgment shall be GRANTED. BY THE COURT: ____________________ HON. J. JOEL H. SLOMSKY Case 2:16-cv-06067-JHS Document 13 Filed 06/02/17 Page 31 of 33 25 IN THE UNITED STATES FEDERAL COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA PULOTOV NEMAT, A206-472-842 Vs. Case No. 2:16-cv-06067-JHS US CITIZENSHIP AND IMMIGRATION SERVICES; et al., CERTIFICATE OF SERVICE I, Tatiana S. Aristova, Esq., hereby certify that I caused to be served the Plaintiff’s Motion for Summary Judgment and Memorandum of Points and Authorities in Support of Plaintiff’s Motion for Summary Judgment with attachments with regard to the above-captioned matter by placing a true and correct copy thereof in a sealed envelope, with postage thereon fully prepaid and causing the same to be mailed by certified mail to the persons at the address set forth below. I declare under penalty of perjury that the foregoing in true and correct. Executed on June 2, 2017. US DOJ, Attorney Office of Immigration Litigation, Katherine J. SHINNERS, Trial Attorney Civil Division, P.O. Box. 878, Ben Franklin Station, Washington, DC 20044 Case 2:16-cv-06067-JHS Document 13 Filed 06/02/17 Page 32 of 33 26 Jefferson B. SESSIONS III, United States Attorney General U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530-0001 John F. KELLY, Secretary US Department of Homeland Security, 245 Murray Lane, SW Washington DC 20528 James McCAMENT, Director of the US Citizenship and Immigration Service (USCIS), 425 I Street NW Room 3214 Washington, DC 20536 Juan OSUNA, Director of EOIR 5107 Leesburg Pike, Suite 1902 Falls Church, VA 22041 Respectfully submitted by: _____________________ /s/Tatiana S. Aristova, Esq. Case 2:16-cv-06067-JHS Document 13 Filed 06/02/17 Page 33 of 33