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Siddiqui v. Cissna

United States District Court, S.D. Indiana, Indianapolis Division

December 7, 2018

BILAL K. SIDDIQUI, et al., Plaintiffs,



         This 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.

         I. BACKGROUND

         The 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.

         The 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.

         The Defendants now move to dismiss the case on the ground that the Court lacks subject matter jurisdiction.


         The 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.


         The 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 review”:

(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.

         According 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.

         The 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 plausibility ...

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