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Boussana v. Johnson

United States District Court, S.D. New York

June 11, 2015

SECRETARY JEH JOHNSON, et al., Defendants.


LORNA G. SCHOFIELD, District Judge.

Plaintiff Jonathan Boussana, a citizen of the Republic of Congo, entered the United States in 2001, applied for asylum the same year, and was granted asylum in 2005. Two years later, in 2007, he timely filed an application with the United States Citizenship and Immigration Services ("USCIS"), an agency under the Department of Homeland Security ("DHS"), for adjustment of status to that of a lawful permanent resident - more commonly known as a "green card." His application remains pending. Plaintiff alleges a violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., and seeks a writ of mandamus compelling USCIS to render a decision on the ground that Defendants have unreasonably delayed adjudication of his green card application. Defendants - Secretary of the DHS and the Director of the USCIS Texas Service Center, where Plaintiff's green card application was filed - move to dismiss for failure to state a claim or in the alternative for summary judgment because there has been no unreasonable delay. For the reasons that follow, Defendants' motion to dismiss is granted in part, and the motion for summary judgment is denied.


The following facts are taken from the operative Complaint, the documents attached or integral to it, and the parties' submissions - including sworn affidavits and exhibits - filed in connection with the present motion. Unless otherwise noted, the facts are undisputed.

A. Present Case

Plaintiff entered the United States on May 5, 2001, under the Visa Waiver Pilot Program[1] using a fraudulent passport. He applied for asylum on September 19, 2001, and filed an amended application on November 10, 2004. An Immigration Judge granted Plaintiff's asylum application on October 7, 2005.

An asylee may apply for a green card after one year in the United States by filing Form I-485 with USCIS. Plaintiff filed his Form I-485 with the Texas Service Center on July 26, 2007. Despite Plaintiff's repeated inquiries regarding the status of his application, the application remains pending almost eight years later. Plaintiff initiated this action on May 27, 2014, seeking an order "requiring Defendants to adjudicate [his] application for adjustment of status."


In his asylum applications and his affidavit in opposition to Defendants' motion, Plaintiff explains that he joined the Congolese Movement for Democracy and Integrated Development ( Mouvement Congolais pour la Democratie et le Developpement Integral or the "MCDDI") in 1992 as a student at the Marien Ngouabi University in Brazzaville, the capital of the Republic of Congo. The MCDDI was founded by Bernard Kolelas as an opposition political party in the Republic of Congo in 1989.[2] After Kolelas and his party lost the 1992 presidential elections, the MCDDI organized protests against the government, and formed the "Ninja" militia force, which according to U.S. government records, engaged in violence - including hostage-taking, torture and extrajudicial killings - against the Congolese government's security forces and rival militia throughout the 1990s.[3] During the civil war in the Republic of Congo that raged from 1997 into 1999, the MCDDI's Ninja militia reportedly killed hundreds, possibly thousands, of unarmed civilians at checkpoints in the areas under their control, executed government security forces and officials, tortured and killed journalists, raped women and looted homes and government buildings.

Plaintiff stated in his asylum application that upon joining the MCDDI in 1992, he was responsible for recruiting "youths within the university" to the MCDDI's various "cells" by explaining the "objectives of the party." Because of his popularity, he was later appointed "propaganda coordinator" for his borough and tasked with setting up an "embassy" and promoting the MCDDI's agenda in advance of the 1992 elections. In his affidavit in opposition to the present motion, Plaintiff explains that once he found out that the MCDDI like other political parties in the Republic of Congo had "raised a militia outfit" during the "1993/94 civil war, " he along with a like-minded friend "expressed [his] dissatisfaction about the militia" to the local MCDDI chairman and told the chairman that he would sever his ties to the party. The chairman advised Plaintiff and his friend to keep their views private for their own safety, but "[f]rom that moment, [Plaintiff] stopped attending party meetings and activities." While Plaintiff did not send his formal resignation letter to the MCDDI until 2005, after he was granted asylum, he explains that his "affiliation with the MCDDI was never connected to any terrorist activities" and he entered the party to "promote democratic ideals." Plaintiff states that he was never a member of the Ninja militia and "never endorsed the idea of militancy for promotion of democratic ideals." In fact, Plaintiff's asylum claim was based in part on the fact that from 1997 to 1998, the government in the Republic of Congo - which backed a different home-grown militia - had falsely accused him of being a Ninja militant because he "was the right age and ethnicity, " and then imprisoned and tortured him.

Plaintiff also submits an affidavit in French from Mounkassa Bertin, who severed ties with the MDCCI at the same time as Plaintiff.[4] Mr. Bertin states that he and Plaintiff "used to be members" of the MCDDI. They "took part [in the] electoral c[a]mpaign for Bernard Kolelas, " the MCDDI's candidate "for presidential election." Mr. Bertin then states that "[d]uring the war, we were wanted by the [C]obras - President Denis Sassou Ngueso's militia - for campaigning for Bernard Kolelas. So we ended up in jail, where we were molested." According to Mr. Bertin, "when they got out of prison, " he and Plaintiff "realized that the MCDDI created an armed militia, " and Plaintiff and Mr. Bertin "immediately stopped attending the party's activities." Mr. Bertin does not specify whether the war during which he claims he was imprisoned along with Plaintiff was (1) the "1993/94 civil war, " which followed the 1992 presidential election, or (2) the 1997/1998 conflict, during which Plaintiff states he was imprisoned. In his asylum applications, Plaintiff states that he was arrested in 1997 and again in 1999; he has never stated that he was imprisoned during the earlier "1993/94 civil war."

Plaintiff submits that he is injured by the eight-year delay in the adjudication of his green card application because, as an asylee, he can travel internationally only on a "refugee passport, " which is "valid for a period of 1 year, " and so must be renewed annually. He states that the cost of renewing the refugee passport "is over $450.00" and is "financially unsustainable to him." He also complains that Defendants' delay in adjudication has robbed him of his "peace of mind" to which he is entitled.

C. Legal Framework

In addition to being otherwise "admissible" in the United States, asylees wishing to obtain a green card must meet various other conditions including establishing physical presence in the United States for at least one year prior to applying for the green card. 8 U.S.C. §§ 1159(b), 1182.

Defendants submit that 8 U.S.C. § 1182(a)(3)(B) is a statutory bar to Plaintiff's change of status. That provision makes aliens who have provided material support to or solicited members for a terrorist organization inadmissible for immigration purposes. As amended by the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302, the Immigration and Nationality Act ("INA") establishes three types of terrorist organizations, of which only the third type - called "Tier III" terrorist organizations - is relevant here. A Tier III organization is a group that "engages in, or has a subgroup which engages in" terrorist activities. Id. § 1182(a)(3)(B)(vi)(III). The statute defines terrorist activities broadly to include the use of "explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property." Id. § 1182(a)(3)(B)(iii)(V)(b). An individual who "solicit[s] any individual [] for membership" in or "affords material support" to Tier III terrorist organizations is inadmissible under the INA unless he "can demonstrate by clear and convincing evidence that [he] did not know, and should not reasonably have known, that the organization was a terrorist organization." Id. §§ 1182(a)(3)(B)(iv)(V)(cc), (VI)(dd).

In an affidavit in support of Defendant's motion, a Supervisor at USCIS' Texas Service Center states that the MCDDI meets the definition of a Tier III organization because its subgroup, the Ninja militia, engaged in terrorist activity as defined by the REAL ID Act. She further states that because Plaintiff provided material support to and solicited members for the MCDDI, he is inadmissible under the INA and accordingly ineligible for a green card. Finally, the affidavit ...

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