Azan-Khan v. Barr

          RULING AND ORDER ON MOTION TO DISMISS

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE

         Irfan Azan-Khan (“Plaintiff”) filed a petition for review under 8 U.S.C. § 1421(c), the Immigration and Naturalization Act (“INA”) § 310(c), and seeks this Court's de novo review of U.S. Citizenship and Immigration Service's (“USCIS”) denial of his naturalization application, as well as a plenary hearing on his naturalization application. Complaint, ECF No. 1 at ¶ 1 (Aug. 16, 2018). He also alleges violations of the Fifth Amendment's Due Process Clause, the Declaratory Judgment Act, 28 U.S.C. § 2201, and the Administrative Procedures Act, 5 U.S.C. § 701 et seq. Id.

         William Barr, U.S. Attorney General, Kevin K. McAleenan, Secretary of the Department of Homeland Security, and Nieves Cardinale, Hartford Field Office Director of USCIS (collectively, “Defendants”), have moved to dismiss Mr. Khan's Complaint.

         For the following reasons, the motion to dismiss is GRANTED IN PART and DENIED IN PART.

         Mr. Azan-Khan's claims under the Fifth Amendment and the Administrative Procedures Act are dismissed. His claim for de novo review under 8 U.S.C. § 1421(c) and for relief under the Declaratory Judgment Act will proceed.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Factual Allegations^[1]

         In May 1993, Mr. Khan, a native of Pakistan, entered the United States. Compl. ¶ 33. On November 6, 2006, Mr. Khan received his permanent resident status in the United States by grant of asylum and was classified as AS6. Id. ¶ 34.

         On August 15, 2011, USCIS received Mr. Khan's Form N-400 Application for Naturalization. Id. ¶ 35.

         On December 28, 2011, Mr. Khan appeared for his first naturalization application interview, id. ¶ 36, and allegedly “successfully met all of the procedural requirements and standards for Naturalization - knowledge of U.S. Civics, English language, etc.” Id. ¶ 37.

         On March 24, 2015, Mr. Khan appeared for his second interview, where he allegedly was questioned extensively on the asylum claim granted by the Immigration Court. Id. ¶ 39. Mr. Khan also was allegedly questioned about his adjustment of status to permanent resident. Id. ¶ 40 (p. 7)^[2].

         On August 12, 2016, USCIS denied Mr. Khan's naturalization application, id. ¶ 41 (p. 7), and Mr. Khan timely filed a N-336 request for a hearing on this decision. Id. ¶ 42 (p. 7).

         On May 30, 2018, the USCIS denied this request because:

Your work with the [Muttahidda Qaumi Movement] over a period of at least six years and your active membership with the MQM since 1987 - which, to date, you have yet to terminate - put you in a position to know, or reasonably to have known, that the organization was involved in terrorist activity. As a result of this activity, under INA Section 212(a)(3)(B)(i)(I) you were inadmissible to the United States at the time you were granted adjustment of status to that of a permanent resident on November 6, 2006. . . .

A full review of your immigration history including your testimony relating to your membership in MOM showed no clear and convincing evidence that you did not know, and should not reasonably have known, that the organization was a terrorist organization Id. § 1182(a)(3)(B)(iv)(Vl)(dd). . . .

The finding that you have not been lawfully admitted is also based on the fact that, prior to your adjustment, you did not apply for, and thus were not granted, the requisite 1-602 waiver pursuant to INA 212(a)(6)(c)(i), for the fraud and misrepresentation you committed when you gained entry into the United States on May 23, 1993 by presenting a fake visa and a fraudulent passport.

Id. ¶¶ 43-43C (p. 7-8).

         Mr. Khan allegedly has exhausted all administrative remedies, and therefore seeks “a determination by [this] Court that he meets the requirements for naturalization and is to be naturalized as a United States Citizen without further delay.” Id. ¶ 45 (p. 9).

         B. Procedural History

         On August 16, 2018, Mr. Khan filed this petition for de novo review of USCIS's denial of his naturalization application and seeks a plenary hearing on his naturalization application. Compl. ¶ 1. He named the Defendants as U.S. Attorney General Jefferson Beauregard Sessions III, ^[3] id. ¶ 6, Secretary of Homeland Security Kirstjen M. Nielsen, id. ¶ 7, and Director of the Hartford Field Office of USCIS Nieves Cardinale, id. ¶ 8.

         Mr. Khan alleges that, under 8 U.S.C. § 1421(c), USCIS wrongfully denied him naturalization and wrongfully re-considered his 2006 grant of asylum. Id. ¶ 45A (p. 8). Mr. Khan alleges having “never concealed his involvement in the international charitable arm and organization of Muttahidda Qaumi Movement (MQM), ^[4] which is an active and recognized political party in Pakistan.” Id. ¶ 45B (p. 9).

         Furthermore, Mr. Khan alleges that “[m]embership in and persecution on account of MQM has been recognized as grounds for being granted political asylum, ” id. ¶ 45C, and that his initial grant of asylum was based upon his membership in MQM, id. ¶ 45D. As a result, Mr. Khan alleges “it was improper for USCIS to subsequently determine that such membership precludes his naturalization because it is now considered a ‘Tier III' terrorist organization, ” and that doing so “impermissibly re-determine[d] his grant of Asylum.” Id. ¶ 45D. Additionally, Mr. Khan alleges his entry into the United States did not require a Form I-602 waiver. Id. ¶ 45D (citing Wu Zheng Huan v. INS, 436 F.3d 89, 100 (2d Cir. 2006)).

         Mr. Khan next claims that a specific question on the Form N-400 is “void for vagueness under the Due Process Clause of the Fifth Amendment.” Id. ¶ 49. Mr. Khan argues that an “ordinary person would not understand the N-400 question on memberships and associations that acting as [the] U.S. based charitable arm of a recognized and legitimated foreign political party with no active statement or history of terrorism would be considered to be providing material support to a terrorist organization.” Id. ¶ 50.

         Mr. Khan also seeks a declaration under 28 U.S.C. § 2201 that Defendants' actions are “unconstitutional, violate the [Immigrations and Naturalization Act], and are arbitrary and capricious.” Id. ¶ 52. Mr. Khan argues that Defendants violated the INA by improperly concluding he made a false statement and thus lacked the “good moral character” required for naturalization. Id. ¶ 53. Mr. Khan alleges he spoke truthfully on all matters, id. ¶ 55, and does not believe himself associated with a terrorist ...