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Lin v. McAleenan

United States District Court, S.D. West Virginia, Huntington Division

October 7, 2019

KEVIN MCALEENAN, Acting Secretary of the Department of Homeland Security; and WILLIAM BARR United States Attorney General, Defendants.



         In April 2019, Plaintiffs Xiu Jin Lin, Wen Hui Lin, Xu Lin, and Hao Lin, (“hereinafter Plaintiffs”), proceeding pro se, filed a civil complaint against Defendants. (ECF No. 1). Currently pending before the court is Defendants' Motion to Stay Civil Action, or in the Alternative, to Extend Responsive Pleading Deadline. (ECF No. 7). This matter is assigned to the Honorable Robert C. Chambers, United States District Judge, and by standing order is referred to the undersigned United States Magistrate Judge for the submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B).

         For the reasons that follow, the undersigned RECOMMENDS that Defendants' Motion to Stay be GRANTED; and that the complaint, (ECF No. 1), be STAYED, until December 27, 2019.

         I. Relevant Facts and Procedural History

         On June 4, 2012, Plaintiff Xiu Jin Lin was granted asylum status in the United States by an Immigration Judge. (ECF No. 7-1 at 4). In May 2013, Xiu Jin Lin filed petitions for asylum on behalf of his spouse, Wen Hui Lin, and his two children, Xu Lin and Hao Lin. (Id.). Based on Xiu Jin Lin's asylum status, these petitions were likewise approved, and the applicants were granted asylum in the United States. (Id.). On June 17, 2013, Xiu Jin Lin filed an I-485 Application to Register Permanent Residence or Adjust Status, seeking a green card (i.e. lawful permanent resident status). His family members followed suit, submitting their I-485 applications on June 15, 2015. (Id.)

         During this time period, multiple law enforcement agencies were cooperating in Operation Fiction Writer (“OFW”), a criminal investigation into immigration fraud. (Id. at 2). OFW uncovered a large-scale asylum fraud conspiracy, which led to the indictment of thirty individuals employed at multiple law firms. These individuals were charged with various crimes, including filing false asylum applications, preparing false immigration documents, and committing other types of immigration benefit fraud. (Id.). Between 2013 and 2014, all thirty individuals were convicted. (Id.). On September 24, 2014 and February 5, 2015, the United States Citizenship and Immigration Services (“USCIS”) issued memoranda initiating an agency-wide “hold” on all applications and petitions associated with the OFW investigation until an appropriate framework for reviewing the affected applications could be established. (Id. at 2).

         In the course of the investigation, agents identified Xiu Jin Lin's case as being one of 2, 800 cases connected to the OFW fraud scheme. (Id. at 4). Apparently, Xiu Jin Lin had retained the Feng Ling Liu Law Firm to represent him in his quest for asylum in the United States, and the employees of that law firm were among the thirty individuals ultimately convicted of immigration fraud. Feng Ling Liu, the founder of the law firm, was herself convicted in 2014 and sentenced to five years in prison for her role in the conspiracy. The evidence from Liu's criminal case revealed that between the years of 2007 and 2012, Liu and her associates coached immigration applicants to lie to immigration officers and assisted applicants in creating fabricated petitions by filing thousands of fraudulent asylum applications. (ECF No. 7-1 at 4 n.1).[1] As a result of Plaintiffs' association with the Feng Ling Lui Law Firm, their I-485 applications were tagged for intensive review and have remained unresolved. (Id. at 4).

         Plaintiffs filed their complaint on April 16, 2019, seeking an order from this Court compelling Defendants to adjudicate Plaintiffs' immigration applications. (ECF No. 1 at 4). Plaintiffs argue that their applications have been pending for an unreasonable amount of time given that I-485 requests typically take 6.5 to 27.5 months to adjudicate. In contrast, their applications have been pending in excess of four years. (ECF No. 10).

         On June 28, 2019, Defendants filed a Motion requesting a stay of the civil action and an accompanying memorandum in support. (ECF Nos. 7, 8). Defendants also submitted the affidavit of Gregory A. Richardson. (ECF No. 7-1). Mr. Richardson states that he is the Director of the USCIS's Texas Service Center (“TSC”), which is located in Dallas, Texas. (Id.). Mr. Richardson asserts that on October 31, 2016, the USCIS issued a memorandum releasing the hold on applications identified as being associated with the OFW investigation and permitting them to be individually reviewed and adjudicated. (Id. at 2). The TSC's Fraud Detection and National Security (“FDNS”) unit, which has 28 employees assigned to work on fraud investigations, was instructed to individually review and investigate each of the approximately 2, 800 affected applications and prepare a written Statement of Facts (“SOF”) report, detailing the results of each investigation. (Id. at 2-3). According to Mr. Richardson, after the SOF is issued, it is reviewed by an adjudication officer, who determines the appropriate action to take. The fraud investigation process is time-consuming and resource-intensive, and the TSC is currently experiencing a backlog of OFW-related cases. (Id. at 3). He stated that for cases where there is “strong indicia of fraud, ” the application is sent to the National Records Center for review by the Office of the Principal Legal Advisor (“OPLA”), which is a division of the United States Immigration and Customs Enforcement (“ICE”). (Id.). ICE OPLA then reviews the case to determine if a Motion to Reopen (“MTR”) is warranted. The filing of a MTR results in the initiation of removal proceedings before the Immigration Judge who granted the underlying asylum claim. (Id.). If ICE OPLA determines a MTR is warranted, the TSC puts a hold on all related petitions and applications until the conclusion of the removal process. If ICE OPLA declines to initiate removal proceedings based on the referral, then the related applications and petitions are returned to the TSC for adjudication. (ECF No. 7-1 at 3).

         Mr. Richardson states that Plaintiff Xiu Jin Lin's case has proceeded through an initial review stage performed by the FDNS, and is currently pending review by ICE OPLA for consideration of whether to file a MTR. (Id. at 4). Accordingly, Plaintiffs' pending I-485 applications are on hold until ICE OPLA makes a recommendation regarding the initiation of removal proceedings. (Id.). If a MTR is approved by the Immigration Judge, jurisdiction over Plaintiffs' immigration status will be removed from USCIS and vested in the Immigration Court. If Plaintiffs' underlying asylum status is revoked, they will be unable to proceed with the adjustment of status applications. (Id.).

         In the memorandum in support of their motion for a stay, Defendants request that this Court “[i]n the interest of judicial economy and efficiency, ” stay the instant action until a decision is reached by ICE OPLA as to whether to file a MTR and initiate removal proceedings. (ECF No. 8 at 7-8). Defendants request a stay until December 27, 2019. If a determination has not been reached by that date, Defendants state they will file a status report and continue to do so every 90 days until a determination is reached by ICE OPLA. (Id. at 8). If this Court declines to grant the requested stay, Defendants ask to be given an additional 30 days to file a responsive pleading. (Id.).

         On July 26, 2019, Plaintiffs submitted a Response to Defendants' request in which they object to a stay of this case. (ECF No. 10). Plaintiffs argue that the length of time it has taken the USCIS to adjudicate their I-485 applications has resulted in “unreasonable delay.” (Id. at 1). Plaintiffs state that while they object to the stay motion, they do not object to Defendants being granted 30 additional days to file a responsive pleading. (Id. at 2). Plaintiffs attach a printed page taken from the USCIS website corroborating that the estimated processing time for an I-485 application filed in 2017 is 6.5 to 27.5 months. (Id. at 3-4).

         II. Discussion

         A. Jurisdiction

         Subject matter jurisdiction is a threshold question that addresses the power of the court to hear a case and must be resolved before a court considers the merits of a case. See Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 479-80 (4th Cir.2005). “Subject-matter jurisdiction ... is an [Article] III as well as a statutory requirement; it functions as a restriction on federal power, and contributes to the characterization of the federal sovereign.” Id. (quoting Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982)). Consequently, courts have an independent obligation to assess whether subject matter jurisdiction exists, irrespective of whether it is raised by the parties. See Wye Oak Tech., Inc. v. Republic of Iraq, 666 F.3d 205, 218 (4th Cir.2011). The burden of proving subject matter jurisdiction rests with the plaintiff, the party asserting that jurisdiction exists. See Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982). Although neither party has raised the issue, the undersigned will consider the issue of subject matter jurisdiction as there is some question regarding its existence.

         “Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). Plaintiffs request that this Court order the USCIS, a federal agency and component of the DHS, to adjudicate their I-485 applications, but have not specifically identified any constitutional or statutory basis for this Court's jurisdiction. There are two potential statutory candidates which may confer jurisdiction for this type of claim. One is the Mandamus Act, which grants federal courts authority over “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.” See 28 U.S.C. § 1361. The other is the Administrative Procedures Act (“APA”) which requires “each agency [to] proceed to conclude a matter presented to it ... within a reasonable time.” 5 U.S.C. § 555(b). The APA further permits judicial review and authorizes district courts to “compel agency action unlawfully withheld or unreasonably delayed.” See 5 U.S.C. § 706(1). As the APA specifically speaks to agency action that is “unreasonably delayed, ” and Plaintiffs complain that their applications have been subjected to “unreasonable delay, ” (ECF No. 10 at 1), the undersigned will consider if the APA grants subject matter jurisdiction over Plaintiff's claims.

         1. Relevant Law

         Under § 245 of the Immigration and Nationality Act (“INA”), the Attorney General has the discretion to adjust the status of certain aliens to allow permanent residence in the United States. The Attorney General may adjust an alien to permanent resident status if:

(1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.

8 U.S.C. § 1255(a). In this case, Plaintiffs filed applications requesting the adjustment of their status to permanent residents relying on their eligibility under 8 U.S.C. § 1159(a). That portion of the INA authorizes the Secretary of the DHS, or the Attorney General, acting within their “discretion, ” to adjust the status of any alien granted asylum to that of a permanent resident if the alien:

(1) applies for such adjustment,
(2) has been physically present in the United States for at least one year after being granted asylum,
(3) continues to be a refugee within the meaning of section 1101(a)(42)(A) of this title or a spouse or child ...

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