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Irshad v. Johnson

United States Court of Appeals, Eighth Circuit

June 11, 2014

Jamshid Irshad, Plaintiff - Appellant,
v.
Jeh Johnson, Secretary of the Department of Homeland Security; Rendell Jones, Acting Deputy Director of the United States Citizenship & Immigration Services; F. Gerard Heinauer, Director of the Nebraska Service Center; Eric H. Holder, Jr., Attorney General of the United States; James B. Comey, Director of the Federal Bureau of Investigation, Defendants - Appellees. [1]

 Submitted, November 20, 2013

Appeal from United States District Court for the District of Nebraska - Omaha.

For Jamshid Irshad, Plaintiff - Appellant: Ryan T. Cosgrove, THE TRIUMPH GROUP, Dallas, TX; Patrick Gregory O'Brien, AKIN & GUMP, Dallas, TX; Ryan J. Sevcik, David Alan Yudelson, KOLEY & JESSEN, Omaha, NE.

For Jeh Johnson, Secretary of the Department of Homeland Security, Rendell Jones, Acting Deputy Director of the United States Citzenship & Immigration Services, F. Gerard Heinauer, Director of the Nebraska Service Center, Eric H. Holder, Jr., Attorney General of the United States, James B. Comey, Director of the Federal Bureau of Investigation, Defendants - Appellees: Laurie Barrett, I, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, District of Nebraska, Omaha, NE; Aaron S. Goldsmith, Trial Attorney, U.S. DEPARTMENT OF JUSTICE, Civil Division, Office of Immigration Litigation, Washington, DC.

Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.

OPINION

Page 605

COLLOTON, Circuit Judge.

Jamshid Irshad, a native of Afghanistan, filed suit seeking to compel the Attorney General of the United States, the Secretary of Homeland Security, the Director of the Federal Bureau of Investigation, the Acting Deputy Director of the United States Citizenship and Immigration Services (" The USCIS" ), and the Director of the Nebraska Service Center for the USCIS (collectively " the officials" ) to decide immediately his pending application for adjustment of status. The district court[2] granted summary judgment in favor of the officials. Irshad appeals, and we affirm.

I.

Irshad was born in Afghanistan in 1972. Following the former Soviet Union's invasion of Afghanistan in 1979, Irshad aided the National Islamic Front of Afghanistan, one of many groups--collectively known as the Mujahidin--that opposed Soviet-backed forces. Irshad supported the group by carrying supplies and giving tours to Western journalists in Afghanistan. In 1988, Irshad fled to the United States. He was granted asylum in 1998.

On March 22, 1999, Irshad filed an I-485 application with the USCIS to adjust his status from asylee to lawful permanent resident. On February 15, 2008, the USCIS denied Irshad's application for adjustment of status because his transportation of supplies for the Mujahidin constituted material support of an undesignated terrorist organization. See 8 U.S.C. § 1182(a)(3)(B).

In 2007, however, Congress significantly broadened the authority of the Secretary of Homeland Security to exempt aliens from the terrorism-related inadmissibility provisions of 8 U.S.C. § 1182(a)(3)(B). Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, div. J., § 691(a), 121 Stat. 1844, 2364-65 (2007); 8 U.S.C. § 1182(d)(3)(B)(i). Following that legislation, in March 2008, the USCIS issued a policy memorandum concerning all adjustment-of-status applications that were denied on terrorism-related inadmissibility grounds after December 26, 2007. Memorandum from Jonathan Scharfen, Deputy Dir., U.S. Citizenship & Immigration Servs., Withholding Adjudication and Review of Prior Denials of Certain Categories of Cases Involving Association with, or Provision of Material Support to, Certain Terrorist Organizations or Other Groups (Mar. 26, 2008). The memorandum provided that all of these applications would be reopened and placed on adjudicatory hold if the applicant could benefit from a subsequent exercise of discretion that would exempt the applicant from a terrorism-related inadmissibility provision. Id.

Pursuant to that policy memorandum, the USCIS reopened Irshad's application on April 29, 2008, and placed it on adjudicatory hold. According to the officials, Irshad's application " remains pending because Irshad may, eventually, benefit from a discretionary exemption for his inadmissibility." The officials assert that the hold inures to Irshad's benefit, because " [i]f the USCIS were to end its adjudicatory ...


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