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Satwinder Singh v. U.S. Citizenship and Immigration Services and Kenneth Madsen

April 19, 2011

SATWINDER SINGH, PLAINTIFF,
v.
U.S. CITIZENSHIP AND IMMIGRATION SERVICES AND KENNETH MADSEN, DIRECTOR, USCIS CHICAGO ASYLUM OFFICE, DEFENDANTS.



The opinion of the court was delivered by: Judge George W. Lindberg

MEMORANDUM OPINION AND ORDER

Plaintiff Satwinder Singh seeks judicial review of the decision of defendants U.S. Citizenship and Immigration Services ("USCIS") and USCIS Chicago Asylum Office Director Kenneth Madsen to terminate plaintiff's asylum status. Before the Court is defendants' motion to dismiss. For the reasons stated below, the motion to dismiss is granted in part and denied in part.

I. Background

Plaintiff is an Indian citizen. On March 5, 1996, USCIS's predecessor, the Immigration and Naturalization Service, granted plaintiff political asylum in the United States.

On November 4, 2009, defendants issued a Notice of Intent to Terminate ("NOIT") plaintiff's asylum. According to the complaint, the NOIT alleged:

USCIS has received evidence that indicates there was fraud in your application for asylum at the time it was granted. Evidence has come to light indicating that you testified to events that did not occur while you lived in India and that testimony was the basis for your grant of asylum. Thus there are questions raised as to the veracity of the statements you made in regard to you [sic] claim for asylum, and these misrepresentations are material to your claim for asylum because they directly relate to whether you suffered past persecution and whether you are likely to suffer harm in the future. In order to give you the opportunity to respond to this adverse information, we have scheduled a termination interview at least thirty (30) days after the date of this notice to give you sufficient time to prepare for the interview.

On December 2, 2009, plaintiff's attorney sent a letter to defendants in which he asked to see the evidence on which the NOIT was based, and requested that the USCIS postpone the interview until he was allowed to inspect the evidence. Plaintiff's attorney also sent defendants an affidavit, in which plaintiff stated that he had provided truthful testimony in support of his asylum application, and that he did not know what evidence defendants were referencing in the NOIT. Defendants did not respond to plaintiff's attorney's request.

On December 8, 2009, an asylum officer interviewed plaintiff. According to the complaint, during the interview the asylum officer asked plaintiff why he may have previously given a statement that he was in the United States during periods in which his asylum application stated that he was in India. Plaintiff denied any knowledge of having provided such a statement to the USCIS. Plaintiff alleges that the asylum officer did not provide plaintiff or his attorney with a copy of the alleged statement or allow them to review it; nor did he provide them with an opportunity to submit evidence to rebut this information.

On July 22, 2010, defendants terminated plaintiff's asylum status on the basis that plaintiff had failed to establish that he was living in India at the time of his alleged persecution, and therefore that he had failed to establish that he was eligible for asylum at the time it was granted. The termination notice enclosed a notice to appear, which placed plaintiff in removal proceedings. The removal proceedings remain pending.

Plaintiff filed this action seeking review of defendants' decision to terminate his asylum status. Plaintiff alleges in his complaint that defendants' actions violated the Administrative Procedure Act (Count I), his due process rights (Count II), and his First Amendment rights (Count III). Defendants move to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b)(1) or, in the alternative, Rule 12(b)(6).

II. Motion to Dismiss for Lack of Subject Matter Jurisdiction

A. Final Agency Action

Defendants first argue that this Court lacks subject matter jurisdiction to review their decision to terminate plaintiff's asylum status because that decision was not a final action. Accordingly, they argue, the case should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1).

This Court has subject matter jurisdiction under the Administrative Procedure Act ("APA") to review only "final agency action." See 5 U.S.C. § 704. An agency action is "final" if it is: (1) "the 'consummation' of the agency's decisionmaking process," that is, "not . . . of a merely tentative or interlocutory nature," and (2) is an action "by which 'rights or obligations have been determined,' or from which 'legal consequences will flow.'" W. Ill. Home Health Care, Inc. v. Herman, 150 F.3d 659, 662 (7th Cir. 1998) (quoting Bennett v. Spear, 520 U.S. 154, 177-78 (1997)). Courts follow "a pragmatic, practical test for the finality of administrative decisions." Id. ...


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