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Dhakal v. Sessions

United States Court of Appeals, Seventh Circuit

July 13, 2018

Arjun Dhakal, Plaintiff-Appellant,
Jefferson B. Sessions III, Attorney General of the United States, et al., Defendants-Appellees.

          Argued May 22, 2018

          Appeal from the United States District Court for the Western District of Wisconsin. No. 3:17-cv-00010-jdp - James D. Peterson, Chief Judge.

          Before Flaum and Ripple, Circuit Judges, and Gettleman, District Judge. [*]

          Ripple, Circuit Judge.

         Arjun Dhakal, a native and citizen of Nepal, brought this action against the Attorney General and other executive branch defendants under the Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et seq., and the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202. He asked the district court to review the decision of the Director of the Chicago Asylum Office, denying his application for asylum. The defendants moved to dismiss for lack of jurisdiction. They contended that Mr. Dhakal had not exhausted his administrative remedies and that the agency action is not final because the immigration courts have not yet passed upon his claim in removal proceedings. Mr. Dhakal remains in lawful status in the United States; he has not been placed in removal proceedings and is therefore unable to access the ordinary channel for further intra-agency review of his asylum application. In his view, because he has exhausted all administrative remedies presently available to him, his claim is ripe, and he can seek review in the district court.

         The district court concluded that it lacked jurisdiction over his claim. Although we conclude that there is no jurisdictional bar, we agree with the Government that the decision Mr. Dha-kal challenges is not a final agency action and, therefore, he is not entitled to relief under the APA. The statutory scheme for adjudication of asylum claims by the agency must be allowed to take its course. We therefore affirm the district court's judgment dismissing the case, but modify it to reflect that it is on the merits.



         According to his asylum application, Mr. Dhakal and his family were members of the Nepali Congress, a political party that he describes as supporting nationalism, democracy, socialism, and nonviolence. From the mid-1990s through late 2006, the Maoist party emerged and began targeting its opposition, including the Nepali Congress. In 2006, the parties signed a Comprehensive Peace Accord, but, without a mechanism for enforcement, the accord did not deter the Maoists. They created a Young Communist League and began to take more aggressive actions. Mr. Dhakal continued his opposition work, including working with the United States Agency for International Development and other international organizations for peace.

         In 2012, he received a letter from the Maoists on official letterhead. The letter instructed him to cease his activities. A few weeks later, four men stopped him as he was riding home on his motorbike. They verbally abused him and told him that the Maoist party had sent them to break his leg. They hit him with a bamboo cane and smashed his motorbike; they also told him that if he did not cease his opposition work, "next time, he will be finished."[1] A forest ranger discovered Mr. Dhakal and transported him to the hospital. A local newspaper reported the attack. Despite this incident, Mr. Dhakal continued his activities, and in April 2013, he received another letter threatening him and his family.

         In May 2013, the University of Rhode Island invited Mr. Dhakal to participate in a course in nonviolent conflict resolution because of his "impressive record of accomplishments and activism."[2] He accepted the invitation, which included a scholarship and travel expenses, and traveled to the United States in June 2013.

         After he left Nepal, Maoists went to his home and threatened his wife, who subsequently fled to her parents' home with their children. Mr. Dhakal determined that he could not return to Nepal and therefore applied for asylum in the United States in August 2013, two months after his entry.

         In April 2015, while Mr. Dhakal's asylum application remained pending, Nepal suffered a 7.8 magnitude earthquake. Based on the resulting conditions, the Secretary of Homeland Security designated Nepal for Temporary Protected Status ("TPS") for eighteen months.[3] Under that designation, eligible nationals of Nepal residing in the United States as of that date would not be removed from the United States and could receive employment authorization for the duration of the TPS designation. Mr. Dhakal applied for, and received, TPS. The Department of Homeland Security twice extended the designation, and Mr. Dhakal has remained in lawful status since his original application for TPS was granted. He eventually moved to Brookfield, Wisconsin, where he now manages a gas station.

         In June 2016, after Mr. Dhakal received TPS, the asylum office of United States Citizenship and Immigration Services interviewed him in connection with his application for asylum. In August, the Director of the Chicago Asylum Office issued a Notice of Intent to Deny the application.[4] Principally, the asylum officer found that Mr. Dhakal was not credible based on internal inconsistencies and a lack of detail in his responses. The officer also concluded that the two threatening letters and one beating did not rise to the level of past persecution and that Mr. Dhakal had not shown a reasonable possibility of future persecution. Mr. Dhakal submitted a rebuttal, but DHS was not persuaded. In September 2016, the Director issued a final denial. The final denial letter informed Mr. Dhakal that "[b]ecause you are maintaining valid … temporary protected (TPS) status, your asylum application will not be referred to an immigration judge for adjudication in removal proceedings before the U.S. Department of Justice, Executive Office for Immigration Review."[5]


         In January 2017, Mr. Dhakal brought this action in the United States District Court for the Western District of Wisconsin, seeking a declaratory judgment that the Director's denial of his asylum claim was contrary to law. The Government moved to dismiss for lack of subject matter jurisdiction and for failure to state a claim, contending that Mr. Dhakal could not proceed in federal court without first exhausting his administrative remedies. After briefing by the parties, the district court granted the Government's motion.

         In a brief opinion, the court held that Mr. Dhakal's suit was barred by Kashani v. Nelson, 793 F.2d 818 (7th Cir. 1986). There, we dismissed a claim brought by an alien who also challenged an initial denial of his asylum application. We held that he was required to pursue administrative remedies. The district court acknowledged that Mr. Dhakal had no further remedies available to him at the time of his action because the Department of Homeland Security had not placed him in removal proceedings and those proceedings were the sole means within the executive branch for review of an adverse asylum decision. The court was sympathetic to Mr. Dhakal's circumstances and further noted that a later case, Iddir v. INS, 301 F.3d 492, 498 (7th Cir. 2002), could be read to undermine Kashani's holding. It nevertheless concluded that Kashani still appeared to govern. Mr. Dhakal unsuccessfully moved for reconsideration and now appeals.

         Subsequent to the filing of briefs in the appeal, the current Secretary of Homeland Security announced the end of TPS for ...

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