United States District Court, S.D. Indiana, Indianapolis Division
BILAL K. SIDDIQUI, et al., Plaintiffs,
L. FRANCIS CISSNA, DIRECTOR, U.S. CITIZENSHIP AND IMMIGRATION SERVICE, et al., Defendants.
ENTRY ON DEFENDANTS' MOTION TO DISMISS
WILLIAM T. LAWRENCE, SENIOR JUDGE UNITED STATES DISTRICT
cause is before the Court on the Defendants' Motion to
Dismiss (Dkt. No. 23). The motion is fully briefed, and the
Court, being duly advised, DENIES the
Defendants' motion for the reasons set forth below.
Plaintiffs in this action are Dr. Bilal and Ms. Bushra
Siddiqui, green-card holders from Pakistan who have three
children who are United States citizens. The Plaintiffs
allege that their Forms I-485, Applications to Register
Permanent Residence or Adjust Status (the “Adjustment
Applications”), were improperly denied by the United
States Citizenship and Immigration Service
(“USCIS”) pursuant to a policy known as the
Controlled Application Review and Resolution Program
(“CARRP”). According to the Plaintiffs, CARRP is
a secret program established by Defendant USCIS in 2008 that
prohibits USCIS adjudicators from approving applications for
certain immigration benefits, including legal permanent
resident status, when the applicant is deemed to pose a
“national security concern” as broadly defined
under CARRP. Instead, CARRP directs USCIS field officers to
delay or deny applications selected for processing under
CARRP. Under CARRP, the Plaintiffs allege, a person is
considered a “national security concern” if he or
she is determined to be a “Known or Suspected
Terrorist, ” (“KST”), which includes all
individuals listed in the Terrorism Screening Database. The
Plaintiffs allege that CARRP violates the Immigration and
Nationality Act, 8 U.S.C. § 1255, and its implementing
regulation, 8 C.F.R. § 245, the arbitrary and capricious
and notice-and-comment provisions of the Administrative
Procedure Act, 5 U.S.C. § 706 and 5 U.S.C. § 553
respectively, and their procedural due process rights under
the Fifth Amendment.
Plaintiffs moved for a temporary restraining order and
preliminary injunction, which the Court denied on October 25,
2018, on the ground that the Plaintiffs sought to obtain
their ultimate relief by way of a preliminary injunction.
Dkt. No. 27. In so doing, the Court also rejected the
Defendants' arguments that the Court lacks jurisdiction
to hear this action, following the reasoning of the United
States District Court for the District of Columbia in
Jafarzadeh v. Duke, 270 F.Supp.3d 296 (D.D.C. 2017)
(Jafarzadeh I). Dkt. No. 27 at 2-4. In particular,
the Court focused on the fact that the Plaintiffs are
challenging the Defendants' procedure, as opposed to the
decision to deny the Adjustment Applications, and
Jafarzadeh I's discussion of a district
court's jurisdiction to hear a challenge that is wholly
collateral to the administrative review process. Id.
Defendants now move to dismiss the case on the ground that
the Court lacks subject matter jurisdiction.
Defendants seek dismissal of this action for lack of subject
matter jurisdiction pursuant to Rule 12(b)(1) of the Federal
Rules of Civil Procedure. When reviewing a motion to dismiss
brought under Rule 12(b)(1), the court “must accept as
true all well-pleaded factual allegations, and draw
reasonable inferences in favor of the plaintiff.”
Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995).
When subject matter jurisdiction is not apparent on the face
of the complaint and is contested, “the district court
may properly look beyond the jurisdictional allegations of
the complaint . . . to determine whether in fact subject
matter jurisdiction exists.” Sapperstein v.
Hager, 188 F.3d 852, 855-56 (7th Cir. 1999) (internal
quotations omitted). The burden of proof with regard to a
Rule 12(b)(1) motion is on the party asserting that the court
has subject matter jurisdiction. Id.
Defendants argue that 8 U.S.C. § 1252(a)(2)(B) precludes
review of USCIS's denial of the Plaintiffs'
Adjustment Applications, thereby depriving the Court of
jurisdiction to hear the Plaintiffs' claims. This statute
provides that “no court shall have jurisdiction to
(i) any judgment regarding the granting of relief under
section . . . 1255 [(Adjustment of status of nonimmigrant to
that of person admitted for permanent residence)] . . . or
(ii) any other decision or action of the Attorney General or
the Secretary of Homeland Security the authority for which is
specified under this subchapter to be in the discretion of
the Attorney General or the Secretary of Homeland Security.
to the Defendants, because USCIS's denial of the
Adjustment Applications was a discretionary decision and the
Plaintiffs are challenging that discretionary decision, 8
U.S.C. § 1252(a)(2)(B) bars review.
Defendants make two arguments in support of their contention
that USCIS's denial of the Adjustment Applications was
discretionary. Whether the decision is discretionary is
critical because, as the Seventh Circuit has noted with
regard to 8 U.S.C. § 1252, “Congress sought only
to preclude review of orders or judgments pertaining to
actual discretionary decisions.” Iddir v.
I.N.S., 301 F.3d 492, 497 (7th Cir. 2002). First, they
argue that the Plaintiffs' allegations fail to meet the