United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON, DISTRICT JUDGE.
Arjun Dhakal, is a native of Nepal who now lives and works in
Johnson Creek, Wisconsin. Dhakal was politically active in
Nepal as an opponent of the Maoist government, and he
contends that he was persecuted as a result. So Dhakal
applied for asylum to the U.S. Citizenship and Immigration
Services (USCIS), but his application was denied. Dhakal
brings this lawsuit to contest the denial of his application
for asylum under the Administrative Procedure Act (APA),
which provides that “a person suffering legal wrong
because of agency action, or adversely affected or aggrieved
by agency action within the meaning of a relevant statute, is
entitled to judicial review.” 5 U.S.C. § 702.
circumstances and his lawsuit are somewhat unusual because,
under the Immigration and Nationality Act, immigration
matters are typically heard by administrative immigration
judges, and then appealed to the Board of Immigration
Appeals, and from there to the circuit courts of appeals.
Defendants contend that Dhakal must take the typical path and
move to dismiss on the ground that this court does not have
jurisdiction over his case. Dkt. 10.
to defendants, Dhakal needs to wait for Immigration and
Customs Enforcement (ICE) to initiate removal proceedings
against him, and Dhakal can make his case for asylum to the
immigration judge in that proceeding. If the decision goes
against him, he can appeal, and ultimately he will get
judicial review in the Seventh Circuit, not the district
court. Defendants are correct that under Kashani v.
Nelson, 793 F.2d 818 (7th Cir. 1986), the denial of an
application for asylum is not reviewable in district court,
and the asylum seeker must pursue the administrative remedies
available on the typical path under the Immigration and
Nationality Act. See also McBrearty v. Perryman, 212
F.3d 985, 987 (7th Cir. 2000) (holding that district court
review was barred because administrative review would be
available if and when a removal proceeding is initiated).
there is a complication in Dhakal's case: he is not
vulnerable to a removal proceedings because Nepal has been
designated for Temporary Protected Status
(TPS). This means that people from Nepal can
remain in the United States and are not subject to removal,
so long as they register for TPS eligibility, as Dhakal has.
Nepal's TPS status has been extended to June 24, 2018.
And it's conceivable that it might be extended again. So,
Dhakal argues, the normal administrative remedies are not
actually available to him.
the exhaustion requirement under the APA may be excused if
administrative remedies are not available. Iddir v.
I.N.S., 301 F.3d 492, 498 (7th Cir. 2002). In
Iddir, the Seventh Circuit suggested that the
“indefinite timeframe” of some future removal
action would be a sufficient basis to excuse the requirement
of administrative exhaustion. Id. at 498-99.
reply, defendants argue that administrative remedies would be
available to Dhakal if he surrenders his TPS eligibility,
thus exposing himself to possible removal proceedings. The
court is not persuaded by this argument for two reasons.
First, defendants cite no authority to show that an
administrative remedy is available if one has to sacrifice
one's rights to get it. Second, even if Dhakal
surrendered his TPS status, there is no certainty that ICE
would initiate them, and thus Dhakal's remedies would be
available only in some “indefinite timeframe” in
court is sympathetic to Dhakal's position, which is
supported by the commentary in Iddir. Although
Dhakal is not facing removal, his wife and children remain in
Nepal. And because Dhakal was not granted asylum, he does not
have the opportunity to bring his family to the United States
as derivative asylees. See 8 U.S.C. §
1158(b)(3)(A). And, at the moment at least, there is nothing
he can do about it, even though he appears to have good
arguments on the merits of his claim for asylum.
still, the closest on-point precedent is Kashani,
and its holding is endorsed by McBrearty, which
acknowledged that the administrative remedy available in a
removal proceeding was contingent on the removal proceeding
being brought in the first place. And even if Dhakal were
entitled to skip the exhaustion process, review would be in
the court of appeals, not the district court.
Kashani, 793 F.2d at 821. Accordingly, the court
will grant defendants' motion and dismiss Dhakal's
case. The guidance of the court of appeals will be greatly
Clerk is directed to enter judgment dismissing this action
for lack of subject matter jurisdiction.
1. Defendants' motion to dismiss, Dkt. 10, is GRANTED.
2. This action is DISMISSED without prejudice for lack of
jurisdiction. Entered ...