United States District Court, D. Connecticut
RULING AND ORDER ON MOTION TO DISMISS
A. BOLDEN UNITED STATES DISTRICT JUDGE
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.
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.
following reasons, the motion to dismiss is GRANTED
IN PART and DENIED IN PART.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
August 15, 2011, USCIS received Mr. Khan's Form N-400
Application for Naturalization. Id. ¶ 35.
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.
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).
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).
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).
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).
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,
id. ¶ 6, Secretary of Homeland Security
Kirstjen M. Nielsen, id. ¶ 7, and Director of
the Hartford Field Office of USCIS Nieves Cardinale,
id. ¶ 8.
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),
which is an active and recognized political party in
Pakistan.” Id. ¶ 45B (p. 9).
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)).
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.
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