Russian national’s lawsuit vs DHS is dismissed

U.S. District Court for the NMI Chief Judge Ramona V. Manglona has dismissed with finality the lawsuit filed by a Russian national against U.S. Department of Homeland Security for allegedly hiding documents related to his humanitarian parole.

In a written order Tuesday that granted DHS’ motion to dismiss, Manglona noted that Milan Fargo’s complaint shows that he has failed to exhaust his administrative remedies.

Manglona said Fargo “has not shown futility of administrative appeal or other good cause to waive” the Freedom of Information Act’s exhaustion requirement.

As no other causes of action remain in the lawsuit, the judge directed the court’s clerk to enter a judgment in favor of DHS and against Fargo, and to close the matter.

Fargo has 30 days to appeal the dismissal order before the U.S. Court of Appeals for the Ninth Circuit.

According to court records, the 65-year-old Fargo, whose original name is Nassir Nazarovich Kourbanov, filed the case against DHS to compel the agency to issue him immigration documents, including some documents from his alien file pursuant to FOIA.

Fargo was placed on removal proceedings in September 2016.

He has been fighting this and was released on his own recognizance.

Fargo argues that he was granted humanitarian parole by U.S. Immigration and Naturalization Service in San Diego, California, in 2002 and that acquiring proof of his parole will help him fight the federal government’s move to have him deported.

To secure that proof, he made an FOIA request for documents from USCIS, INS’ successor agency, in August 2015.

In granting DHS’ motion to dismiss the lawsuit, Manglona said the FOIA request itself is not in the record before the court, but the response from the director of USCIS’ FOIA Operations at the National Records Center is.

Manglona said the director’s letter advised Fargo that he has a right to an administrative appeal.

Fargo made a separate FOIA request to the U.S. Marshals Service.

Manglona said that request, like the NRC request, is not in the record.

On Feb. 23, 2016, the Office of General Counsel sent Fargo a letter, in which it notified him that it had located one document responsive to his request and that the document was enclosed.

Like the NRC, the OGC advised Fargo of his right to appeal administratively within 60 days.

Manglona said no documents were withheld.

On Aug. 5, 2016, Fargo sent an online inquiry to the OGC’s FOIA Help Desk. He acknowledged receiving the Feb. 23 letter on March 10 and wrote that he just realized only that day that he can appeal the office’s decision regarding the documents being withheld pursuant to the FOIA.

The Help Desk acknowledged the inquiry and indicated it would respond in one business day.

Manglona said no response is in the record.

On Aug. 24, 2016, Fargo filed the complaint, which accused DHS of hiding from him any information related to his purported 2002 INS parole.

Manglona said failure to exhaust administrative remedies under FOIA does not deprive the district court of jurisdiction but is a jurisprudential requirement to afford the agency the opportunity to exercise its discretion and to make a record for judicial review.

Manglona said it is undisputed that Fargo never appealed USCIS’ decision to withhold documents.

The judge said Fargo did not plead facts showing an appeal.

She said Fargo affirms the failure to appeal in his opposition, but raises an excuse of ignorance.

Manglona said plaintiff may not have been aware that failure to appeal within the agency is required before a court will hear his complaint, but he cannot plead excusable ignorance.

Manglona said that, although English is not Fargo’s native language and he sometimes has difficulties with grammar and diction, he has displayed considerable intellectual ability to grasp abstract legal concepts and formulate arguments, and has demonstrated that he reads the court’s order closely.

Manglona said even after a separate FOIA request to the OGC was denied in February 2016 and he was notified by that office of his right to an administrative appeal, he did not take timely action.

The judge said Fargo has not explained why it took him until August 2016 to realize that administrative appeal was possible. “By that time, he may have been confusing the two FOIA requests, that he wrote the OGC to appeal the withholding of documents that OGC did not withhold,” Manglona said.

Manglona said Fargo has not shown that he ever wrote to USCIS to request that the agency toll the 60-day period and allow him to administratively appeal.

Last October, Manglona dismissed the lawsuit. She concluded that asylum is impossible for Fargo while he is present in the CNMI, he has failed to show a clear and certain right to a replacement permanent resident card, he has failed to follow through with basic means of obtaining relief from immigration authorities on his advance parole and EAD claim.

The judge ruled that Fargo’s claim for relief as to his alleged application for a replacement permanent green card is dismissed without prejudice. Fargo was allowed to re-file the claim. He, however, failed to re-file it by the deadline.

DHS then moved to dismiss Fargo’s remaining cause of action—for judicial review of the December 2015 partial denial of his FOIA request for documents by USCIS—on grounds of failure to exhaust administrative remedies.