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Alkassab v. Rodriguez

United States District Court, D. South Carolina, Charleston Division

April 3, 2017

Nawras Alkassab, Plaintiff,
v.
Leon Rodriguez, Director, United States Citizenship and Immigration Services Defendant.

          ORDER AND OPINION

          RICHARD M. GERGEL, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant's motion to dismiss Plaintiffs second amended complaint. (Dkt. No. 24.) For the reasons set forth below, the Court grants Defendant's motion to dismiss.

         Plaintiff Nawras Alkassab, a South Carolina resident and citizen and national of Syria, brought this civil action on April 25, 2016, alleging that Defendant United States Citizenship and Immigration Services ("USCIS") unlawfully delayed adjudication of his Form 1-589 Application for Asylum and Withholding of Removal ("asylum application") by subjecting him to its Controlled Application Review and Resolution Program ("CARRP"), in violation of the Administrative Procedure Act ("APA") and the Due Process Clause of the Fifth Amendment.

         Plaintiff, whose asylum application has been pending since October 10, 2014 (approximately two years and six months), has asked this Court to (1) order USCIS to schedule an interview and adjudicate his pending asylum application; (2) pay him reasonable attorney's fees under the Equal Access to Justice Act; and (3) declare that CARRP violates the APA and the Due Process Clause of the Fifth Amendment, (Dkt. No. 23 at 13.)

         I. Background

         Plaintiff was a student at the University of Aleppo in Syria at the start of the Syrian Civil War in March 2011. (Dkt. No. 23 at 3.) From August 2011 through November 2013, Plaintiff organized and participated in anti-Assad protests in Syria. (Id. at 3-4.) Plaintiff alleges that he was tortured for his affiliation with and participation in anti-Assad activities and that he moved to Turkey in November 2013 in fear of further persecution. (Id. at 4-5.) While in Turkey, Plaintiff worked as an officer manager for the Syrian Interim Government in the health minister's office and lent his computer networking skills to "help online activists in the Syrian Revolution." (Id. at 5.)

         On August 10, 2014, Plaintiff entered the United States on a student visa to pursue a master's degree in computer science at the University of Bridgeport in Connecticut. (Id.) Plaintiff was unable to pursue that degree program due to lack of funds so moved to Charleston, South Carolina within two months of his arrival in the United States to join his brother who was attending graduate school in Charleston.[1] (Id.)

         Plaintiff filed his asylum application with USCIS on October 10, 2014. (Id.) He alleges that USCIS "affirmatively chose to subject [his] application to [CARRP], " a program that "requires USCIS adjudicators to delay adjudication of certain applications and to deny them for pre-textual reasons [and] disproportionately affects middle-eastern applicants and Muslim applicants." (Id. at 6.) In or around February 2015, officers from the Federal Bureau of Investigation and the Department of Homeland Security interviewed Plaintiff at his home. Plaintiff claims that this interview was part of the CARRP program. (Id.)

         On March 2, 2015, Plaintiff filed an application for Temporary Protected Status ("TPS") with USCIS along with his application for an employment authorization document ("EAD"). (Id. at 7.) In August 2015, USCIS granted Plaintiff an interim EAD, authorizing him to work until March 14, 2016. (Id.) In December 2015, the University of South Carolina offered Plaintiff admission into its Ph.D. program for computer science with a work/study contract, and Plaintiff applied that month for a new EAD. (Id.) Plaintiff filed this lawsuit on April 25, 2016, and his EAD application was approved the next day on April 26, 2016. (Id. at 8.) On November 29, 2016, USCIS granted Plaintiffs application for TPS. Plaintiff has protected status until March 2018. (Id.) The benefits of Temporary Protected Status are as follows[2]:

During a designated period, individuals who are TPS beneficiaries or who are found preliminarily eligible for TPS upon initial review of their cases (prima facie eligible):
• Are not removable from the United States
• Can obtain an employment authorization document (EAD)
• May be granted travel authorization
Once granted TPS, an individual also cannot be detained by DHS on the basis of his or her immigration status in the United States.
TPS is a temporary benefit that does not lead to lawful permanent resident status or give any other immigration status. However, registration for TPS does not prevent you from:
• Applying for nonimmigrant status
• Filing for adjustment of status based on an immigrant petition
• Applying for any other immigration benefit or protection for which ...

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