The long delayed asylum petition of Blood Live Bemba, fleeing Ninja in the Congo. Recall prior NinjaLaw Congo cases.

ERIC H. HOLDER, Attorney General of the United States, et al., Defendants.

Case No. 4:11CV1859 JAR


Decided March 11, 2013, opinion by U.S. District Judge John A. Ross

Plaintiff indicated on his asylum application and in his affidavit in support of his application that he was a member of the Youth Section of the Congolese Movement for Democracy and Integral Development (MCDDI) beginning in 1995. (DSUF, ¶6; Baggerly Dec., ¶6). He stated that in 1996, he was elected secretary of the Diata Branch, and as the secretary, he recorded minutes of the group’s meetings. (DSUF, ¶7). He further stated that, “in December 1998, ‘Ninjas,’ guerillas associated with the MCDDI, launched an attack on the capital, Brazzaville.” (DSUF, ¶8).

Plaintiff denies that he was ever a member of the MCDDI. Instead, he claims that at sixteen, he became a member of the Youth Section of the Congolese Movement for Democracy and Integral Development (Youth JMCDDI), a social organization for young people. (Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motion to Dismiss or, In the Alternative, For Summary Judgment & In Support of Plaintiff’s Motion for Summary Judgment (“Response”), [*5] ECF No. 24, p. 2). Plaintiff contends that he disassociated himself from Youth JMCDDI at age eighteen by burning his membership card. (Id., pp. 2-3). Plaintiff denies ever joining the MCDDI, which is an adult group. (Id., p. 3). Likewise, he denies ever participating in any terrorist activity. (Id.).

Due to the activities of its armed wing, the Government contends that MCDDI meets the current definition of an undesignated terrorist organization, commonly referred to as a “Tier III” organization under 8 U.S.C. §1182(a)(3)(B)(vi)(III). (DSUF, ¶¶9-11). Under 8 U.S.C. §1182(a)(3)(B)(vi)(III), a Tier III terrorist organization is “a group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in” defined terrorist activities. Therefore, the Government contends that Plaintiff is inadmissible to the United States under INA §212(a)(3)(B)(i)(I) for engaging in a terrorist activity as that term has been defined by Congress at INA §212(a)(3)(B)(iii)(V). (DSUF, ¶12).


On March 26, 2008, the Deputy Director of USCIS issued a memorandum providing guidance regarding adjudication of cases involving inadmissibility under 8 U.S.C. §1182(a)(3)(B). (DSUF, ¶16). The memorandum instructed that adjudicators should withhold adjudication of cases that could benefit from the Secretary’s amended discretionary authority under the CAA. (Id.).

The Government asserts that the adjudication of Plaintiff’s application is being withheld in accordance with agency policy. (SOF, ¶17; Baggerly Dec., ¶13). If the USCIS were ordered to complete the adjudication of Plaintiff’s [*7] adjustment of status application today, his case would be denied without prejudice to allow Plaintiff to re-file. (Id.)


The Court understands Plaintiff’s frustration with this long and protracted process. As recognized [*34] by other courts, the Court realizes that at some point a long-term hold on the adjudication becomes an effective denial of adjustment of status. See, e.g., Al Karim v. Holder, No. CIVA08CV00671-REB, 2010 U.S. Dist. LEXIS 30030, 2010 WL 1254840 (D. Colo. Mar. 29, 2010)(holding the 8-year delay in adjudicating a refugee’s I-485 application was unreasonable as matter of law); Al-Rifahe v. Mayorkas, 776 F. Supp. 2d 927, 938 (D. Minn. 2011)(denying the government’s motion for summary judgment where the plaintiff’s application was pending for over thirteen years and the government’s argument regarding the lengthy process of assessing Tier III organizations was “severely undermined in Al-Rifahe’s case by the January 2010 memorandum determining that applications on hold because of the applicant’s association with the INC may be considered for an exemption”). While the Court does not identify the “tipping point” of when the length of such a delay becomes a denial, the Eighth Circuit has upheld a ten-year delay in adjudication (although based largely upon an application backlog) as not unreasonable. See Debba v. Heinauer, No 8:08CV304, 2009 U.S. Dist. LEXIS 3484, 2009 WL 146039 (D.Neb. Jan. 20, 2009), aff’d 366 Fed. Appx. 696, 2010 WL 521002 (8th Cir. Feb. 16, 2010). [*35] 10 Furthermore, the Government presented evidence that it has made progress regarding exemptions to other categories of applicants and that it is moving forward with Plaintiff’s application. See ECF No. 42. “[I]n view of all the other circumstances in the case, especially national security concerns and the high-level, detailed, and discretionary reviews necessitated by exemption determinations under 8 U.S.C. § 1182(d)(3)(B)(i),” the Court finds that the 6-year delay experienced by Plaintiff is reasonable as a matter of law. See Ayyoubi v. Holder, 4:10-CV-1881 SNLJ, 2011 U.S. Dist. LEXIS 80129, 2011 WL 2983462 (E.D. Mo. July 22, 2011).