DOE et al v. Risch et al, No. 4:2018cv04583 - Document 40 (N.D. Cal. 2019)
Court Description: ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT by Judge Saundra Brown Armstrong granting 31 Motion for Summary Judgment; denying 33 Motion for Summary Judgment. (kcS, COURT STAFF) (Filed on 7/26/2019)
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DOE et al v. Risch et al Doc. 40 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 OAKLAND DIVISION 8 9 JANE DOE and JOHN DOE,1 Plaintiffs, 10 11 vs. 12 CARL RISCH, Assistant Secretary for Case No: C 18-04583 SBA ORDER GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Consular Affairs, U.S. Dept. of State, et al.,2 Dkt. 31, 33 13 Defendants. 14 15 In this immigration mandamus action, Plaintiffs seek an order compelling 16 Defendants to adjudicate their Form I-730 petition for derivative asylum. Presently before 17 the Court are the parties’ cross-motions for summary judgment. Having read and 18 considered the papers filed in connection with this matter and being fully informed, the 19 Court GRANTS Plaintiffs’ motion and DENIES Defendants’ motion, for the reasons stated 20 below. The Court, in its discretion, finds this matter suitable for resolution without oral 21 argument. See Fed. R. Civ. P. 78(b); N.D. Cal. Civ. L.R. 7-1(b). 22 23 Magistrate Judge Nathanael Cousins granted Plaintiffs’ motion to proceed under the pseudonyms Jane Doe and John Doe. Dkt. 14. 1 24 Plaintiffs name as party-defendants: Carl Risch, Assistant Secretary for Consular Affairs, Bureau of Consular Affairs, U.S. Department of State (“DOS”); Edward Ramotowski, Deputy Assistant Secretary for Visa Services, Bureau of Consular Affairs, 26 DOS; Paul Malik, Consul General to the U.S. Embassy & Consulate in the United Arab Emirates, DOS; and L. Francis Cissna, Director of the U.S. Citizenship and Immigration 27 Services (“USCIS”), Department of Homeland Security (collectively, “Defendants”). Pursuant to Federal Rule of Civil Procedure 25(d), the Court substitutes Philip Frayne in 28 place of Paul Malik and Kenneth Cuccinelli II in place of L. Francis Cissna. 2 25 Dockets.Justia.com 1 I. BACKGROUND 2 A. 3 “A spouse or child . . . of an alien who is granted asylum under [section 1158(b)] THE FORM I-730 PETITION PROCESS 4 may, if not otherwise eligible for asylum under this section, be granted the same status as 5 the alien if accompanying, or following to join, such alien.” 8 U.S.C. § 1158(b)(3)(A). A 6 principal asylee may request “accompanying or following-to-join benefits for his or her 7 spouse or child(ren) by filing a separate Request for Refugee/Asylee Relative [i.e., a Form 8 I-730 petition] . . . in accordance with the form instructions.” 8 C.F.R. § 208.21(d). To 9 establish eligibility for derivative asylum, four requirements must be met: (1) the 10 beneficiary’s identity must be verified; (2) there must be a qualifying family relationship 11 between the petitioner and the beneficiary; (3) the beneficiary cannot be subject to any of 12 the mandatory bars to asylum; and (4) the beneficiary must merit a favorable exercise of 13 discretion. Declaration of Seven J. Pollnow (“Pollnow Decl.”) ¶ 7, Dkt. 34.3 14 A follow-to-join petition is processed in two distinct phases. Id. ¶ 8. First, the 15 principal asylee in the United States files the I-730 petition, which is processed by USCIS 16 at a domestic Service Center. Id. If approved, the beneficiary is then interviewed to 17 determine if he or she is eligible to receive documentation authorizing travel to the United 18 States. Id. ¶ 9. When a beneficiary is located outside the United States and in a location 19 where USCIS does not have a presence, petitions approved by USCIS are forwarded to the 20 DOS National Visa Center for transfer to the U.S. embassy or consulate with jurisdiction. 21 Id. ¶ 10. In such circumstances, DOS is authorized to conduct the interviews, make 22 eligibility determinations, and issue travel documentation. Id. 23 Beneficiaries of follow-to-join petitions are subject to various “biographic and 24 biometric background and security checks” throughout the petition process. Id. ¶ 15. As is 25 pertinent here, Security Advisory Opinion (“SAO”) biographic checks may be initiated by 26 Steven J. Pollnow serves as a Section Chief at USCIS’s Nebraska Service Center. Pollnow Decl. ¶ 1. His duties include overseeing the adjudication of Form I-730, 28 Refugee/Asylee Relative Petitions for asylum-based follow-to-join beneficiaries. Id. ¶ 2. 27 3 -2- 1 the embassy/consulate following a beneficiary’s DOS interview. Id. ¶ 16. SAOs are 2 initiated for beneficiaries who “are nationals of a country that the U.S. government has 3 designated as requiring this security check or who otherwise meet the requirements for an 4 SAO.” Id. SAOs are conducted by the Federal Bureau of Investigation (“FBI”) and 5 intelligence community partners. Id. “When an SAO is required, a cleared response must 6 be received before issuance of a travel document to a beneficiary.” Id. 7 B. 8 Jane Doe is a native citizen of Iran and a legal permanent resident of the United 9 10 11 PLAINTIFFS’ FOLLOW-TO-JOIN PETITION States. Declaration of Jane Doe (“Doe Decl.”) ¶ 1, Dkt. 32-1. She is married to John Doe, who still lives in Iran. Id. ¶ 2. They have two minor sons. Id. Jane Doe and her sons arrived in the United States on a tourist visa in December 12 2015. Id. ¶ 3. Shortly thereafter, Jane Doe converted to Christianity. Id. In Iran, 13 “conversion from Islam is deemed apostacy and is punishable by death.” Id. ¶ 4. Fearing 14 religious persecution if she returned to Iran, Jane Doe applied for asylum for herself and her 15 children. Id. They were granted asylum on January 5, 2017. Id.4 16 On January 30, 2017, Jane Doe filed a Form I-730 Petition on behalf of her husband, 17 John Doe. Id. ¶ 5. She also submitted a request for expedited processing based on the 18 distress of their younger son. Id. ¶ 6. Plaintiffs’ younger son suffers from extreme 19 depression and anxiety due to separation from his father and fears that his father may be 20 harmed in Iran. Id. His mental suffering is so severe that he attempted suicide. Id. ¶ 7. 21 On August 11, 2017, Plaintiffs’ I-730 petition was preliminarily approved by USCIS 22 and forwarded to the United States Embassy in Abu Dhabi, United Arab Emirates (the 23 “Embassy”) for further processing. Id. ¶ 8. On September 13, 2017, the National Visa 24 Center notified Plaintiffs’ that their request for expedited processing had been approved. 25 Id. ¶ 9. On November 16, 2017, John Doe appeared at the Embassy for his interview. Id. 26 To be eligible for asylum, Jane Doe had to show that she is unable or unwilling to return to Iran because of a well-founded fear of persecution on account of her religion. 28 Ahmen v. Keisler, 504 F.3d 1183, 1191 (9th Cir. 2007) (citing 8 U.S.C. § 1101 (a)(42)(A)). 27 4 -3- 1 ¶ 10. At the end of the interview, John Doe was advised that his petition was being placed 2 in administrative processing, where it has remained. Id. & Ex. A. 3 Plaintiffs assert that John Doe’s continued separation from his family is causing 4 much pain and hardship. Id. ¶ 11. The family fears that John Doe is at risk of persecution 5 in Iran due to his wife’s conversion to Christianity. Id. As a result, Plaintiffs’ youngest son 6 continues to suffer from extreme anxiety and depression. Id. According to the treating 7 psychologist, Plaintiffs’ youngest son suffers debilitating panic and anxiety attacks and has 8 experienced an increase in suicidal thoughts. Id. & Ex. B. 9 Defendants admit that John Doe meets the criteria for derivative asylum based on his 10 qualifying relationship to a principal asylee. Pollnow Decl. ¶ 6. They confirm that USCIS 11 approved Plaintiffs’ I-730 petition on August 11, 2017, and that the DOS interviewed John 12 Doe at the Embassy on November 16, 2017. Id. ¶ 17. Defendants aver: “To date, USCIS 13 has not received complete results of the security vetting process on the beneficiary, 14 specifically the SAO, and until the complete results are received, and are deemed 15 satisfactory for purposes of the [sic] determining the beneficiary’s eligibility for derivative 16 asylum status, no travel documentation can be issued.” Id. 17 C. 18 Plaintiffs filed the instant action on July 30, 2018 and filed the operative First 19 Amended Complaint on November 5, 2018. Dkt. 1, 25. They bring a single cause of action 20 pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., and the 21 Mandamus Act, 28 U.S.C. § 1361, to compel Defendants to adjudicate their I-730 petition. 22 A scheduling order was entered in this action in accordance with General Order 61. THE INSTANT ACTION 23 Dkt. 6. Thereafter, the parties filed several stipulations extending the deadline for 24 Defendants to file an answer. See Dkt. 21, 23, 26, 29. Defendants’ counsel advised that 25 USCIS was “working to adjudicate Plaintiff’s pending I-730 Petition,” and the extensions 26 were sought “to allow time for USCIS to continue [that] process[.]” Dkt. 29 ¶¶ 3-4. 27 Defendants filed an Answer on December 21, 2018. Dkt. 28. 28 -4- 1 Thereafter, Plaintiffs filed the instant Motion for Summary Judgment and 2 Memorandum in Support of their Motion for Summary Judgment (“Mot.”). Dkt. 31, 32. 3 Defendants’ filed a combined Opposition to Plaintiffs’ Motion for Summary Judgment and 4 Cross-Motion for Summary Judgment (“Cross-Mot.”). Dkt. 33. Plaintiffs filed an 5 Opposition and Reply (“Opp’n”), Dkt. 37, and Defendants filed a Reply (“Reply”), Dkt. 38. 6 The cross-motions are fully briefed and ripe for adjudication. 7 II. LEGAL STANDARD 8 “Summary judgment is appropriate only where ‘there is no genuine dispute as to any 9 material fact and the movant is entitled to judgment as a matter of law.’” Salazar-Limon v. 10 City of Houston, 137 S. Ct. 1277, 1280 (2017) (quoting Fed. R. Civ. P. 56(a)). The moving 11 party bears the initial burden of identifying those portions of the pleadings, discovery, and 12 affidavits that establish the absence of a genuine dispute of material fact. Cline v. Indus. 13 Maint. Eng’g & Contracting Co., 200 F.3d 1223, 1229 (9th Cir. 2000) (citing Celotex Corp. 14 v. Catrett, 477 U.S. 317, 323-25 (1986)). If the moving party meets its burden, the burden 15 shifts to the non-moving party to go beyond the pleadings and identify specific facts 16 demonstrating the existence of a triable issue. Id. (citing Celotex, 477 U.S. at 323-24). 17 III. 18 19 DISCUSSION Through this action, Plaintiffs seek to compel Defendants to adjudicate their I-730 petition.5 The parties have filed cross-motions for summary judgment. 20 A. 21 As a threshold matter, Defendants assert that the Court lacks jurisdiction “to compel 22 the agency action in question because Congress has divested the courts of jurisdiction over 23 immigration suits that concern decisions or actions committed to agency discretion.” JURISDICTION 24 Plaintiffs invoke both the APA and the Mandamus Act in a single cause of action to compel Defendants to adjudicate their I-730 petition. Where, as here, the relief sought under the APA and the Mandamus Act is essentially the same, the Ninth Circuit had elected 26 to analyze a plaintiff’s entitlement to relief under the APA. Independence Min. Co. v. Babbitt, 105 F.3d 502, 507 (9th Cir. 1997) (citing Japan Whaling Ass’n v. American 27 Cetacean Soc’y, 478 U.S. 221, 230 n.4 (1986) (construing a claim for mandamus under 28 U.S.C. § 1361 as, “in essence,” one for relief under § 706 of the APA)). This Court 28 likewise analyzes Plaintiffs’ entitlement to relief under the APA. 5 25 -5- 1 Cross-Motion at 5 n.1 (citing 8 U.S.C. § 1252(a)(2)(B)(ii)). No further argument is 2 provided. Instead, Defendants “recognize that there have been a number of opinions from 3 this District and others within the Ninth Circuit finding jurisdiction over claims of 4 unreasonable delay” in analogous cases. Id. (citing Islam v. Heinauer, 32 F. Supp. 3d 1063, 5 1069 (N.D. Cal. 2014), and cases cited therein).6 6 Pursuant to 8 U.S.C. § 1252(a)(2)(B)(ii), courts are divested of jurisdiction to review 7 immigration-related decisions or actions (other than the granting of relief under § 1158(a)), 8 “the authority for which is specified [by statute] to be in the discretion of the Attorney 9 General or the Secretary of Homeland Security.” The decision to grant or deny derivative 10 asylum status is committed to agency discretionary by statute. 8 U.S.C. § 1158(b)(3)(A) 11 (“A spouse or child . . . of an alien who is granted asylum under this subsection may . . . be 12 granted the same status as the alien . . . .”) (emphasis added); see also Ngassam v. Chertoff, 13 590 F. Supp. 2d 461, 464 (S.D.N.Y. 2008). The ultimate decision to grant or deny 14 Plaintiffs’ I-730 petition is therefore insulated from judicial review. Id. 15 As Defendants acknowledge, however, courts in this district—including this 16 Court—have consistently held that § 1252(a)(2)(B)(ii) does not divest courts of subject 17 matter jurisdiction over claims that an agency has unlawfully withheld or unreasonably 18 delayed the processing of immigration-related petitions. Islam, 32 F. Supp. 3d at 1069; see 19 also Dong v. Chertoff, 513 F. Supp. 2d 1158, 1165 (N.D. Cal. 2007) (Armstrong, J.) (“8 20 U.S.C. § 1252(a)(2)(B)(ii) does not deprive the Court of jurisdiction to hear an allegation 21 that the determination of an application for adjustment of status has been unlawfully 22 withheld”). Even where no time limits are imposed by the enabling-statute, Defendants 23 have a non-discretionary duty to adjudicate immigration-related petitions “within a 24 reasonable period of time.” 5 U.S.C. § 555(b); see also Islam, 32 F. Supp. 3d at 1069. 25 Ordinarily, Defendants’ one-sentence argument—relegated to a footnote—would be insufficient to present the matter to the Court for determination. However, because the 27 Court has “an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party,” Arbaugh v. Y&H Corp., 546 28 U.S. 500, 514 (2006), the Court briefly addresses this issue. 26 6 -6- 1 “‘To hold otherwise would be to sanction the perpetual delay of governmental obligations 2 that are clearly mandated by law.’” Islam, 32 F. Supp. 3d at 1069 (citation omitted). 3 The Court finds the rationale of these prior cases persuasive, and Defendants offer 4 no reasoned basis for the Court to deviate therefrom. Accordingly, the Court has subject 5 matter jurisdiction over Plaintiffs’ claim of unreasonable delay. 6 B. 7 The underlying facts are not in dispute; rather, the parties dispute whether the 8 government’s delay in adjudicating Plaintiffs’ I-730 petition is unreasonable. See 5 U.S.C. 9 § 706(a) (courts shall “compel agency action unlawfully withheld or unreasonably TRAC FACTORS 10 delayed”). In determining whether agency action is unreasonably delayed under 5 U.S.C. 11 § 706(a), the Ninth Circuit has adopted the so-called TRAC factor test. Brower v. Evans, 12 257 F.3d 1058, 1068-69 (9th Cir. 2001) (citing Telecomm. Research & Action v. FCC 13 (TRAC), 750 F.2d 70, 80 (D.C. Cir. 1984)). The six factors to be balanced are: 14 19 (1) the time agencies take to make decisions must be governed by a rule of reason; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by the delay; and (6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed. 20 Id. (quoting Indep. Mining Co., 105 F.3d at 507 n.7 (quoting TRAC, 750 F.2d at 80) 21 (quotation marks, internal citations, and alterations omitted)). 15 16 17 18 22 1. First Factor: A Rule of Reason 23 The first TRAC factor teaches that the timing of agency action is governed by a 24 “rule of reason.” TRAC, 750 F.2d at 80. Although the length of the delay is a primary 25 consideration, it is not dispositive. Islam, 32 F. Supp. 3d at 1071. “What constitutes an 26 unreasonable delay in the context of immigration applications depends to a great extent on 27 the facts of the particular case.” Id. (quotation marks and citation omitted). Courts 28 typically consider the source of the delay, including the complexity of the investigation and -7- 1 the extent to which each party contributed to the delay. Singh v. Still, 470 F. Supp. 2d 2 1064, 1068 (N.D. Cal. Jan. 8, 2007) (quotation marks and citations omitted). 3 In the instant case, Plaintiffs’ I-730 petition has been pending for nearly two and half 4 years. There is no evidence that the delay is attributable, in whole or in part, to Plaintiffs. 5 Nor is there any evidence that the investigation is especially complex. Rather, Defendants 6 assert only that “USCIS has not yet received the complete results of the security vetting 7 process,” i.e., the SAO, for John Doe. Cross-Mot. at 6. They argue that, “[g]iven the 8 importance of a complete security vetting process,” the delay at issue here is not 9 unreasonable. Id. As discussed below, however, Defendants’ bare assertions are 10 insufficient to justify a delay of this length. Although Defendants aver that John Doe’s 11 SAO has not yet been completed, they provide no further detail. Among other things, they 12 fail to provide any information as to why an SAO is required in this case, why it has taken 13 so long to complete an SAO, and whether any particular issue of concern has arisen during 14 the security vetting process that has caused or contributed to the delay. 15 As courts in this district have recognized, national security concerns rightly factor 16 into an evaluation of the reasonableness of Defendants’ delay. Chen v. Chertoff, No. C 07- 17 2816 MEJ, 2008 WL 205279, at *3 (N.D. Cal. Jan. 23, 2008). “However, the mere 18 invocation of national security is not enough to render agency delay reasonable per se.” 19 Singh, 470 F. Supp. 2d at 1069 (finding that the government’s claim of “[security] issues 20 requiring further inquiry” was insufficient absent “further information”). Defendants 21 “cannot simply point to a pending FBI background check to establish that any delay in 22 processing [a petition] is reasonable.” Chen, 2008 WL 205279, at *3. “National security 23 interests and the complexity of the background check process can only excuse reasonable 24 delay.” Id. (emphasis added). Here, Defendants provide “no particularized facts to suggest 25 that these concerns apply with special force” to John Doe’s petition or that his SAO is 26 “otherwise subject to special circumstances.” Id.; see also Kousar v. Mueller, 549 F. Supp. 27 2d 1194, 1199 (N.D. Cal. 2008) (“Although national security certainly justifies a thorough 28 name check process, there is no contention that Plaintiff’s application is particularly -8- 1 complex or any evidence as to why the name check caused the application processing to 2 take far longer than the 180 days suggested by Congress.”). 3 Defendants cite Islam for the proposition that courts in this district “have generally 4 found delays of four years or less not to be unreasonable.” Cross-Motion at 8 (citing Islam, 5 32 F. Supp. 3d at 1071-72); see also Reply at 1. Islam and the cases it surveys are inapt, 6 however, because they involve “holds on Form I-485 Applications due to findings of 7 terrorist-related inadmissibility.” 32 F. Supp. 3d at 1071 (and cases cited therein, including 8 Khan v. Scharfen, No. 08-1398 SC, 2009 WL 941574 (N.D. Cal. Apr. 6, 2009)). A 9 determination of whether to grant an exception to terrorist-related inadmissibility “is a 10 complicated process, involving inter-agency consultation.” Khan, 2009 WL 941574, at *9. 11 Such cases are “distinguishable from the now-typical case involving a delay in processing 12 an applicant’s FBI background check.” Id. at *8 (noting that, in a typical background check 13 case, “there are no facts specific to the applicant which are causing the delay, or which 14 implicate national security concerns”). 15 With regard to typical background check cases, courts in this district have found 16 that, “under normal circumstances, a delay of approximately two years due to an 17 uncompleted FBI background check is unreasonable as a matter of law.” Chen, 2008 WL 18 205279, at *3 (and cases cited therein); accord Kousar, 549 F. Supp. 2d at 1199 (and cases 19 cited therein). Here, just shy of two and a half years have passed since Plaintiffs’ petition 20 was filed. Accordingly, the first factor tips in Plaintiffs’ favor. 21 2. Second Factor: Congressional Timetable 22 The second TRAC factor provides that a timetable or other indication of the speed 23 with which Congress expects the agency to proceed may “supply content” for the rule of 24 reason. TRAC, 750 F.2d at 80. Absent “exceptional circumstances,” administrative 25 adjudication of a principal asylum application “shall be completed within 180 days” of the 26 date the application is filed. 8 U.S.C. § 1158(d)(5)(A)(iii). There is no congressionally- 27 mandated timetable for adjudicating derivative asylum petitions. However, “[i]t is the 28 sense of Congress that the processing of an immigrant benefit application should be -9- 1 completed not later than 180 days after the initial filing of the application[.]” 8 U.S.C. 2 § 1571(b). Although § 1571(b) is merely precatory, this provision nonetheless suffices to 3 “tip the second TRAC factor in [Plaintiffs’] favor.” Islam, 32 F. Supp. 3d at 1073. 4 Defendants respond that § 1571(b) “does not reflect the notion that the government 5 must take extra care with an application that requires additional security vetting.” Cross- 6 Mot. at 6-7. The fact that certain circumstances may justify a departure from the standard 7 processing time does not counsel in favor of disregarding Congress’s guidance. Rather, 8 similar to the allowance in § 1158(d)(5)(A)(iii) for “exceptional circumstances,” that is a 9 matter for the Court to evaluate on a case-by-case basis. As discussed above, Defendants 10 have not shown any circumstances unique to this case that justify a lengthy delay in 11 completing the security vetting process. On the other hand, approximately 900 days have 12 elapsed since the filing of Plaintiffs’ petition, which is five times longer than the 180-day 13 benchmark set forth in § 1571(b). Consequently, Defendants are well outside the expected 14 processing time without sufficient justification. 15 3. Third & Fifth Factors: Human Welfare & Interests Prejudiced 16 “The third and fifth factors overlap, requiring the court to consider whether human 17 health and welfare are at stake, and the nature and extent of the interests prejudiced by the 18 delay.” Islam, 32 F. Supp. 3d at 1073. It is undisputed that human health and welfare are 19 at stake where an asylee files a follow-to-join petition for a family member still residing in 20 their native country. See Cross-Mot. at 7 (acknowledging that “Plaintiffs assert legitimate 21 concerns regarding human health and welfare”). Delay that might be reasonable in another 22 context is therefore “less tolerable” here. TRAC, 750 F.2d at 80. 23 Further, the Court finds that the specific interests prejudiced by delay in processing 24 I-730 petitions are weighty. As set forth above, follow-to-join petitions may be filed on 25 behalf of an asylee’s spouse or child. 8 U.S.C. § 1158(b)(3)(A). Thus, as is the case here, 26 delay in processing such petitions may result in extended family separation. Doe Decl. ¶ 11 27 (describing separation of John Doe from his wife and minor sons). Additionally, because 28 the principal asylee has been granted asylum, there may be a credible threat of persecution - 10 - 1 in the native country. See Ahmen, 504 F.3d at 1191. Here, the family fears for John Doe’s 2 safety in Iran due to Jane Doe’s conversion to Christianity. Doe Decl. ¶¶ 6-7, 11. In this 3 case, Plaintiffs also assert that the ongoing family separation and fear of persecution have 4 caused their minor son to suffer extreme anxiety and depression. Id.7 5 Again, Defendants do not dispute that “Plaintiffs assert legitimate concerns 6 regarding human health and welfare[.]” Cross-Mot. at 7. They simply respond that they 7 “have a strong [countervailing] interest in completing security vetting of derivative asylee 8 applicants before permitting them to enter the United States.” Id. “Undoubtedly,” national 9 security is an interest “of the highest order.” Singh, 470 F. Supp. 3d at 1069. As discussed 10 above, however, “the mere invocation of national security is not enough to render agency 11 delay reasonable per se.” Id. The third and fifth factors therefore tip in favor of Plaintiffs. 12 13 4. Fourth Factor: Higher or Competing Priorities The fourth TRAC factor considers the effect of expediting delayed action on agency 14 activities of a higher or competing priority. TRAC, 750 F.2d at 80. Defendants make the 15 bald assertion that expediting Plaintiffs’ application would divert resources to this case, “to 16 the detriment of other duties carried out by the various government offices involved.” 17 Cross-Mot. at 7. Defendants do not identify those other duties or make any effort to 18 prioritize them, however. Defendants further assert that “it would be unfair for [John 19 Doe’s] SOA to be prioritized at the expense of others ahead of [him] in the queue.” Id. 20 Defendants do not establish that there is a queue, however, let alone John Doe’s place 21 therein. There is no evidence before the Court as to the number of I-730 petitions/SOAs 22 currently pending or how many of those petitions/SOAs have been pending longer than 23 John Doe’s. Given that nearly two and a half years have elapsed since Plaintiffs’ petition 24 was filed and more than 20 months have elapsed since John Doe completed his interview, 25 The Court notes that adjudication of Plaintiffs’ petition will not necessarily result in John Doe being granted derivative asylum, and thus, may not alleviate the harms described above. Given that USCIS preliminarily approved his petition, however, it is 27 plausible that John Doe will benefit from the final adjudication of his petition. In that event, delay is prejudicial. Further, the uncertainty that Plaintiffs face while the petition 28 sits “in limbo” inflicts its own sort of harm. See Islam, 32 F. Supp. 3d at 1070, 1073. 7 26 - 11 - 1 the Court finds that expediting adjudication of Plaintiffs’ petition would not unduly burden 2 agency resources. Thus, the fourth factor tips in Plaintiffs’ favor. 3 4 5. Sixth Factor: Impropriety Lastly, the sixth TRAC factor teaches that the Court need not find any impropriety 5 lurking behind agency lassitude to conclude that agency action is unreasonably delayed. 6 TRAC, 750 F.2d at 80. Defendants cite Liberty Fund, Inc. v. Chao, 394 F. Supp. 2d 105 7 (D.D.C. 2005), as providing a corollary to that rule, i.e., that the good faith of the agency 8 weighs against mandamus. Cross-Mot. at 7. Defendants err in reading Liberty Fund too 9 broadly, however. Liberty Fund does not stand for the proposition that the absence of “any 10 improper purpose,” Cross-Motion at 7, weighs against mandamus. Indeed, this would run 11 counter to TRAC’s holding that bad faith is not required for a finding of unreasonable 12 delay. Rather, Liberty Fund stands for the proposition that an agency’s good faith “in 13 addressing the delay weighs against mandamus.” 394 F. Supp. 2d at 120 (emphasis added) 14 (providing that a court may decline to issue a writ expediting agency action where the 15 agency has already taken steps to address the delay and there is little reason to believe that 16 a court order is necessary to sustain improvement or spur greater effort). 17 In Liberty Fund, the agency provided a sound justification for the delay (i.e., a 18 change in the law that resulted in an influx of applications) and documented its efforts to 19 reduce the backlog and rectify the delay. 394 F. Supp. 3d at 120. Here, by contrast, 20 Defendants do not provide a sound justification for the delay. Although they assert that an 21 SAO is required and has not yet been completed, they fail to identify any circumstance or 22 concern that necessitates an SAO in this case or warrants the lengthy delay in completing 23 the same. Nor do Defendants identify any action taken to ensure the prompt adjudication of 24 Plaintiffs’ petition. To the contrary, they fail to provide even an estimated timeframe to 25 complete the SAO. They assert only that the petition cannot be adjudicated “until the 26 complete results are received.” Pollnow Decl. ¶ 17. This assertion does not address the 27 delay faced by Plaintiffs. Consequently, while the Court does not find that Defendants 28 - 12 - 1 have acted in bad faith to cause the delay, neither does it find that they have acted in good 2 faith to address the delay such that judicial intervention is rendered unnecessary.8 3 IV. CONCLUSION 4 In view of the forgoing, the Court finds that Defendants have unreasonably delayed 5 in adjudicating Plaintiffs’ I-730 petition, which has been pending for nearly two and a half 6 years. Defendants have not shown that any portion of the delay is attributable to Plaintiffs, 7 that the petition is unusually complex, that higher or competing priorities necessitate a 8 delay of this length, or that any effort has been made to ensure the prompt adjudication of 9 the petition. Accordingly, IT IS HEREBY ORDERED THAT Plaintiffs’ motion for 10 summary judgment is GRANTED and Defendants’ cross-motion for summary judgment is 11 DENIED. Defendants shall adjudicate Plaintiffs’ I-730 petition within 30 days of the date 12 this Order is filed. The Clerk shall close the file and terminate all pending matters. 13 14 IT IS SO ORDERED. Dated: July 26, 2019 ______________________________ SAUNDRA BROWN ARMSTRONG Senior United States District Judge 15 16 17 18 19 20 For the first time in their Opposition, Plaintiffs assert that bad faith or improper purpose can be inferred here because Defendants failed to mention an SAO when they requested extensions of the time to file an answer. Opp’n at 8. According to Plaintiffs, it can be inferred that the SAO was not initiated until after the instant action was filed, and thus, that “there has been impropriety behind the government’s actions.” Id. Where an agency has delayed in bad faith, the court may find that delay is unreasonable. See Indep. Min. Co., 105 F.3d at 510 (quoting In re Barr Labs., Inc., 930 F.2d 72, 76 (D.C. Cir. 1988) (“[w]here [an] agency has manifested bad faith, as by singling someone out for bad treatment or asserting utter indifference to a congressional deadline, the agency will have a hard time claiming legitimacy for its priorities”)). The Court finds no evidence of bad faith here, however. Although Defendants do not state when the SAO was initiated, their representations made in connection with the extension requests do not necessarily show that an SAO was initiated after the action was filed. Furthermore, even if Defendants delayed in initiating an SAO, there is no evidence to suggest that this was due to bad faith, as opposed to mere inadvertence or backlog. In any event, as stated above, bad faith is not required for a finding that agency action is unreasonably delayed. 8 21 22 23 24 25 26 27 28 - 13 -
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