Al Khader et al v. Tillerson et al
Filing
41
MEMORANDUM Opinion and Order signed by the Honorable Robert M. Dow, Jr on 2/4/2020: For the reasons stated, Plaintiffs' motion for leave to file an amended complaint 33 is denied. Given the nature of these claims, the Court will give Plaint iffs one last opportunity to file a motion for leave to amend no later than February 24, 2020, if they believe that a claim can be stated consistent with the Court's opinions. If no motion for leave is filed by that dateor if Plaintiffs advise the Courtroom Deputy that they will not be seeking leave to amend prior to that datethe Court will enter a final and appealable judgment under Federal Rule of Civil Procedure 58 and terminate this case in the district court. Mailed notice (cn).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RAED AL KHADER and HANI HASAN )
AHMAD EL KHADER a/k/a AL
)
)
KHADER,
)
Plaintiffs,
)
)
v.
)
)
MICHAEL POMPEO, United States
)
Secretary of State, et al.,
)
)
Defendants.
)
Case No. 18-cv-1355
Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Plaintiffs Raed Al Khader (“Raed”) and Hani Hasan Ahmed El Khader a/k/a Al Khader
(“Hani”) seek leave to file an amended complaint for declaratory relief challenging the July 16,
2015 decision of the U.S. Consulate in Riyadh denying Hani’s immigrant visa application and
finding him to be inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i) for a material misrepresentation.
See [33]. For the reasons explained below, Plaintiffs’ motion [33] is denied. In view of the nature
of these claims, the Court will give Plaintiffs one last opportunity to file a motion for leave to
amend no later than February 24, 2020, if they believe that a claim can be stated consistent with
the Court’s opinions. If no motion for leave is filed by that date—or if Plaintiffs advise the
Courtroom Deputy that they will not be seeking leave to amend prior to that date—the Court will
enter a final and appealable judgment under Federal Rule of Civil Procedure 58 and terminate this
case in the district court.
I.
Background1
Plaintiffs Raed and Hani are brothers. Their family is originally from Palestine. Raed is a
United States citizen, living in Highland Park, Illinois. Hani is a citizen of Jordan and currently
resides in Saudi Arabia. Hani lived in the United States from December 1988 until July 2002 and
maintained lawful immigration status during that period under several types of visas.
In 1994, Ameritrust Mortgage Corporation (“Ameritrust”) filed Form ETA-750,
application for employment certification, with the U.S. Department of Labor (“DOL”) for Hani to
work as a Cost Analyst in its company. In March 1998, Ameritrust prepared and submitted Form
I-140, immigrant visa petition for alien worker with legacy INS on behalf of Hani. Legacy INS
approved the petition in August 1998.
While that petition was pending, Hani entered into a brief marriage with a citizen of the
United States named Nadia Muna (“Muna”), who was 17 at the time of the marriage. According
to the proposed amended complaint, the May 1997 marriage was arranged by Hani’s and Muna’s
families according to the common practice of Muslim and Arab families. [33-1] at 7. In July
1997, Muna and Hani filed Form I-130, immigrant visa petition for alien relative, and Form I-485,
application to adjust status, with legacy INS, based on Hani being the spouse of a U.S. citizen. In
March 1998, Muna filed for divorce, which was granted in October 1998.
In December 2001, legacy INS issued a Notice of Intent to Revoke (“NOIR”) the
previously approved Form I-140 petition on the basis that Hani had entered into a sham marriage
with Muna. In response, Hani filed several requests with legacy INS to review the information
alleged and contained in his “A-file” so that he could adequately respond to the NOIR. [33-1] at
14. Legacy INS refused.
1
For purposes of Defendants’ motion to dismiss, the Court assumes as true all well-pled allegations set
forth in the proposed amended complaint [33-1].
2
Instead, the proposed amended complaint alleges, legacy INS “engaged in a fishing
expedition to find a reason to deny” Hani’s visa. [33-1] at 24. In March 2001, legacy INS sent a
special agent to interview Muna. According to the proposed amended complaint, “Muna allegedly
provided conflicting statements to the special agent, first claiming she was never in a real marriage
with Hani, but then admitting that it was her parents’ wishes for her to marry Hani.” [33-1] at 14;
see also [33-1] at 5, n.1 (explaining that the proposed amended complaint refers to the exhibits
filed with the original complaint); [2-5] at 42, Ex. MM (interview notes filed as exhibit to original
complaint). The proposed amended complaint acknowledges that Hani and Muna never lived
together or consummated their marriage but maintains that this was not “unusual in the Muslim
world,” especially when the woman is young and still in school as Muna was, and that Hani and
Muna “were still legally married under Wisconsin law and Islamic law.” [33-1] at 9, 11.
In May 2002, Hani filed a response to the NOIR, which “included detailed affidavits and
other extensive evidence” that allegedly established a bona fide marriage to Muna. [33-1] at 14.
This evidence included “affidavits from Ms. Muna’s parents, his sister-in-law, the Imam who
performed the marriage ceremony, his friends who knew Ms. Muna’s mother and introduced the
couple to each other, his friends who attended their engagement party, wedding ceremony, and
reception, and Ms. Muna’s friends who attended the wedding ceremony,” as well as “photos of
[Hani] and Ms. Muna together, and photos of the meeting of his family and Ms. Muna’s family
during his visit to Jordan.” Id. at 29. Hani’s response also included an expert affidavit from a
professor of Islamic religion, which explained that “arranged marriages are common in Muslim
and Arabic families” and it is “common for a married couple to delay living together and
consummating the marriage for a variety of reasons.” Id. at 15; see also id. at 30. Nonetheless,
the proposed amended complaint alleges, legacy INS “failed to address any of these issues when
3
it revoked the Form I-140 immigrant visa petition filed by Ameritrust on behalf of Plaintiff Hani.”
Id.
In July 2002, Hani departed the United States for Canada, which had granted him “‘landed
immigrant’ status.” [133-1] at 15. In August 2002, the Federal Bureau of Investigation (“FBI”)
in Milwaukee determined that the allegations of immigration visa fraud against Hani were
unsubstantiated and closed its criminal investigation. Customs Officer Steven Suhr also concluded
that he had no interest in pursuing a criminal case against Hani. Nonetheless, in October 2002,
legacy INS revoked Hani’s previously approved Form I-140 visa based on allegations of marriage
fraud and denied Hani’s Form I-485 petition.
Hani filed a complaint in the U.S. District Court for the Northern District of Illinois seeking
judicial review of legacy INS’s refusal to allow him to review relevant portions of his “A-file,”
which he allegedly needed to adequately respond to the NOIR. See El Khader v. Perryman, 264
F. Supp. 2d 645 (N.D. Ill. 2003). The district court dismissed the complaint for lack of jurisdiction
and the Seventh Circuit affirmed. See El Khader v. Monica, 366 F.3d 562, 568 (7th Cir. 2004)
(holding that “the decision to revoke a previously approved visa petition pursuant to 8 U.S.C. §
1155 is expressly left to the discretion of the Attorney General”).
In July 2006, U.S. Citizenship and Immigration Services (“USCIS”) (an office of the U.S.
Department of Homeland Security (“DHS”)) approved a Form I-140 immigrant visa petition that
Raed had filed on behalf of Hani in September 2001. The complaint alleges that since 8 U.S.C. §
1154(c) prohibits “approval of any subsequent immigrant visa petition *** where the intending
immigrant has been found to have engaged in marriage fraud,” USCIS’s approval of the Form I140 in 2006 “can only indicate that USCIS determined that Hani did not engage in marriage fraud
with Ms. Muna.” [33-1] at 16.
4
In July 2011, the U.S. Department of State (“DOS”) National Visa Center (“NVC”)
informed Plaintiffs that Hani was eligible to apply for his immigrant visa and to proceed with visa
case processing in Montreal, Canada. In March 2012, the NVC transferred Hani’s case from
Montreal to Riyadh at Hani’s request. Hani, his wife, and their four children filed Forms DS-230
with the NVC in August 2012 and Forms DS-260 with the DOS Consular Electronic Application
Center (“CEAC”) in January 2015. Hani and his family were scheduled for interviews with a
consulate officer at the U.S. Consulate in Riyadh (“Consulate”). According to the proposed
amended complaint, the consular officer “raised to Plaintiff Hani the issue of his previous marriage
to Ms. Muna.” [33-1] at 16-17. “Hani explained to the consular officer that the charges of marriage
fraud were unsubstantiated.” Id. at 17.
On July 16, 2015, the Consulate denied Hani’s immigrant visa application based on a
determination that Hani was inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i) for material
misrepresentation. According to the proposed amended complaint, “[t]his determination was
based on the previous allegations of marriage fraud.” [33-1] at 17.
On February 22, 2018, Plaintiffs filed a complaint in this Court against the U.S. Secretary
of State, the DOS, the U.S. Consul General in Riyadh, the U.S. Secretary of Homeland Security,
DHS, the U.S. Attorney General, and the U.S. Department of Justice (“Defendants”). In Count
One of the complaint, for violation of Due Process, Plaintiffs alleged that Raed “is a United States
citizen who has a protected liberty interest in having his brother Hani be admitted into the U.S.
based on the approved Form I-130 immigrant visa petition he filed for his brother.” [2] at 16.
Count One asserted that “Defendants’ determination that Hani is inadmissible under 8 U.S.C. §
1182(a)(6)(C)(i) violates Plaintiff Raed’s liberty interest to make personal choices regarding
family matters free from unjustifiable government interference in violation of Plaintiff Raed’s right
5
to substantive due process guaranteed by the Fifth Amendment of the United States Constitution”
and “also violates Plaintiff Raed’s interest in having his brother Hani’s immigrant visa application
adjudicated in a manner consistent with procedural due process.” [2] at 17.
In Count Two of the complaint, which was titled “Denial of Immigrant Visa Not Facially
Legitimate and Bona Fide,” Plaintiffs alleged that the Court “has jurisdiction to adjudicate this
case, notwithstanding the so-called doctrine of consular non-reviewability, because Defendants’
denial of Hani’s immigrant visa application was not based on a facially legitimate and bona fide
reason.” [2] at 17. Count Two asserted that “Defendants’ denial of Hani’s immigrant visa
application based on marriage fraud is inconsistent with the USCIS’s approval of Form I-130 filed
by Plaintiff Raed” and therefore “is not facially valid.” Id. at 18. Court Two further claimed that
the denial of Hani’s immigrant visa application based on marriage fraud also was “not made in
good faith.” Id. This claim was based on allegations that legacy INS had “acted unfairly in
revoking” Hani’s Form I-140 petition “four years after it had been approved” and had refused to
allow Hani to review evidence in his A-file in order to respond to the NOIR, as allegedly required
by legacy INS’s regulations. Id. at 18-19. Count Two also alleged that “USCIS continued to
withhold relevant evidence” from Hani’s A-file, which resulted in his filing a FOIA complaint
with the U.S. District Court for the Northern District of Illinois in 2016. See id. at 19-20.
According to the complaint, “[t]he records obtained in 2016 as a result of the most recent FOIA
litigation that the legacy INS previously withheld from Hani corroborate that the legacy INS knew
or should have known that he entered into a good faith marriage with Ms. Muna. Specifically, the
records contain a report from an interview with Ms. Muna in 2001, where she admits that she and
Hani began a relationship according to Arabic and Islamic custom and that it was her parents’
wishes for her to marry Plaintiff Hani.” Id. at 20 (citing [2-5] at 42, Ex. MM).
6
Count Three of the complaint alleged that Defendants violated the Administrative
Procedures Act, 5 U.S.C. §§ 702, 704, and 706, because the consulate official’s finding that Hani
is inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i) was not supported by substantial evidence, was
arbitrary and capricious, and resulted from a failure to investigate.
The Court granted Defendants’ motion to dismiss, which was premised on the doctrine of
consular non-reviewability. See [32]. The Court gave Plaintiff an opportunity to file a timely
motion for leave to file an amended complaint, which Plaintiffs did on March 4, 2019. See [33].
Plaintiffs explain that the proposed amended complaint is intended to address this Court’s decision
regarding consular non-reviewability [32] and the Seventh Circuit’s decision in Yafai v. Pompeo,
912 F.3d 1018 (7th Cir. 2019), as well as to clarify Plaintiffs’ “procedural and substantive due
process claims and additional law regarding the adjudication and revocation of immigrant visa
petitions by the USCIS and the U.S. Department of State.” [33] at 2. The first two counts of the
proposed amended complaint, titled “Due Process Violation” and “Denial of Immigrant Visa Not
Facially Legitimate and Bona Fide,” are essentially the same as the first two counts of the original
complaint, with a few additions. In Count II, Plaintiffs argues that, “[b]ecause the basis of the
consular officer’s denial of the visa application is legally inconsistent with 8 U.S.C. § 1154(c) and
the USCIS’s approval of Plaintiff Raed’s Form I-130 immigrant visa petition, the consular officer
did not cite to a valid statute of inadmissibility and therefore his decision is not facially valid.”
[33-1] at 23. Plaintiffs also contend that the denial of Hani’s visa application was not made in
good faith for two reasons. First, Plaintiffs assert that, “[g]iven the clear evidence contained
throughout the record of Hani’s innocence of any marriage fraud and the USCIS’s decision to
approve Plaintiff Raed’s Form I-130 fourth preference immigrant visa petition notwithstanding 8
U.S.C. § 1154(c), the consular officer acted in bad faith in denying Hani’s immigrant visa
7
application based on unsubstantiated allegations of marriage fraud.” [33-1] at 26. Second,
Plaintiffs contend that “[t]he consular officer further acted in bad faith in failing to follow proper
procedure and return the Form I-130 immigrant visa petition to USCIS.” [33-1] at 26. Plaintiffs
allege that “[u]pon return of Form I-130 to the USCIS, the USCIS would then decide whether to
initiate the revocation process.” Id. “If USCIS decided to initiation the revocation process, it
would have to inform Plaintiff Raed in a Notice of Intent to Revoke of the alleged marriage fraud,
thereby providing Plaintiffs Raed and Hani the opportunity to rebut the allegations of marriage
fraud.” Id. at 26-27 (citing 9 FAM 504.2-5(C)(2)(d)(1) and (3); 8 C.F.R. § 103.2(b)(16)(i)).
The proposed amended complaint does not include a Count Three. Counts Four (First
Amendment) and Five (Equal Protection) are both new and, according to Plaintiffs, intended to
“emphasize Hani’s strong evidence of innocence of marriage fraud” by showing that “the consular
officer’s decision violated their First Amendment right to exercise their religion as Muslims and
Fifth Amendment equal protection right to be free from religious discrimination.” [38] at 6. More
specifically, proposed Count Four alleges that “Defendants’ failure to adequately consider Hani’s
evidence that his marriage arrangement with Ms. Muna was common among Muslim and Arabic
couples violated the free exercise clause of the First Amendment by discriminating on the basis of
religion.” [33-1] at 30. Proposed Count Five alleges that “[t]he consular officer’s failure to
adequately consider Hani’s evidence that his marriage arrangement with Ms. Muna was common
among Muslim and Arabic couples in finding Hani inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i)
for fraud and willful misrepresentations violated the Equal Protection Clause of the Fourteenth
Amendment by discriminating on the basis of religion.” [33-1] at 31.
Defendants oppose Plaintiffs’ motion for leave to file an amended complaint, contending
that the proposed amended complaint suffers from the same fatal flaws identified in the Court’s
8
decision dismissing the original complaint and, therefore, allowing amendment would be futile.
See [36].
II.
Legal Standard
A motion for leave to file an amended complaint should “freely” be granted “where justice
so requires.” Fed. R. Civ. P. 15(a)(2). “This liberal policy of granting amendments is based in
part on the belief that decisions on the merits should be made whenever possible, absent
countervailing considerations.” Olech v. Vill. of Willowbrook, 138 F. Supp. 2d 1036, 1040 (N.D.
Ill. 2000) (citation omitted). Thus, leave to amend is freely given “‘[i]n the absence of any apparent
or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of the allowance of the amendment, [or] futility of amendment.’” Barry
Aviation, Inc. v. Land O’Lakes Mun. Airport Comm’n, 377 F.3d 682, 687 (7th Cir. 2004) (quoting
Foman v. Davis, 371 U.S. 178 (1962)).
The Court “may refuse to entertain a proposed amendment on futility grounds when the
new pleading would not survive a motion to dismiss.” Gandhi v. Sitara Capital Mgmt., LLC, 721
F.3d 865, 869 (7th Cir. 2013). It should be “certain from the face of the complaint that any
amendment would be futile or otherwise unwarranted’” before leave to amend is denied. Runnion
ex rel. Runnion v. Girl Scouts of Greater Chicago & Nw. Indiana, 786 F.3d 510, 519–20 (7th Cir.
2015) (quoting Barry Aviation Inc. v. Land O’Lakes Mun. Airport Comm’n, 377 F.3d 682, 687
(7th Cir. 2004)); see also Luvert v. Chicago Hous. Auth., 142 F. Supp. 3d 701, 706 (N.D. Ill. 2015).
Ultimately, “‘[t]he decision to grant or deny a motion to file an amended pleading is a matter
purely within the sound discretion of the district court.’” Soltys v. Costello, 520 F.3d 737, 743
(7th Cir. 2008) (quoting Brunt v. Serv. Employees Int’l Union, 284 F.3d 715, 720 (7th Cir. 2002)).
9
For purposes of a motion to dismiss under Rule 12(b)(6), the Court “‘accept[s] as true all
of the well-pleaded facts in the complaint and draw all reasonable inferences in favor of the
plaintiff.’” Calderon-Ramirez v. McCament, 877 F.3d 272, 275 (7th Cir. 2017) (quoting Kubiak
v. City of Chicago, 810 F.3d 476, 480-81 (7th Cir. 2016)). However, the Court need not accept as
true “‘legal conclusions or unsupported conclusions of fact.’” Community Bank of Trenton v.
Schnuck Markets, Inc., 887 F.3d 803, 825 (7th Cir. 2018) (quoting County of McHenry v. Insurance
Co. of the West, 438 F.3d 813, 818 (7th Cir. 2006)). To survive a motion to dismiss under Rule
12(b)(6), a plaintiff’s complaint must allege facts which, when taken as true, “‘plausibly suggest
that the plaintiff has a right to relief, raising that possibility above a speculative level.’” Cochran
v. Illinois State Toll Highway Auth., 828 F.3d 597, 599 (7th Cir. 2016) (quoting EEOC v.
Concentra Health Servs., 496 F.3d 773, 776 (7th Cir. 2007)). The Court reads the complaint and
assesses its plausibility as a whole. See Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir.
2011). In addition, it is proper for the Court to “consider, in addition to the allegations set forth in
the complaint itself, documents that are attached to the complaint, documents that are central to
the complaint and are referred to in it, and information that is properly subject to judicial notice.”
Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013) (citing Geinosky v. City of Chicago, 675
F.3d 743, 745 n. 1 (7th Cir.2012)); see also Fed. R. Civ. P. 10(c).
III.
Analysis2
Defendants argue that allowing Plaintiffs to file an amended complaint would be futile
because the proposed amended complaint, like the original complaint, must be dismissed based on
the doctrine of consular non-reviewability, which is “the general rule that decisions ‘to issue or
2
As it did in its decision dismissing the original complaint—and as the Seventh Circuit did in Yafai, 2019
WL 101829, at *2, in regard to an American citizen seeking to have his or her spouse admitted to the
country—the Court will avoid taking a position on the threshold issue of whether an American citizen’s
desire to have an adult sibling reside in the United States raises a constitutionally-recognized interest.
10
withhold a visa’ are not reviewable in court ‘unless Congress says otherwise.’” Matushkina v.
Nielsen, 877 F.3d 289, 294 (7th Cir. 2017) (quoting Saavedra Bruno v. Albright, 197 F.3d 1153,
1159 (D.C. Cir. 1999)). As the Court explained in its prior decision, it cannot “disturb the consular
officer’s decision if the reason given is ‘facially legitimate and bona fide.’” Yafai v. Pompeo, 912
F.3d 1018, 1021 (7th Cir. 2019) (quoting Kleindienst v. Mandel, 408 U.S. 753, 769 (1972)). “For
a consular officer’s decision to be facially legitimate and bona fide, the consular officer must
identify (1) a valid statute of inadmissibility and (2) the necessary ‘discrete factual predicates’
under the statute.” Id. (quoting Kerry v. Din, 135 S. Ct. 2128, 2140–41 (U.S. 2015) (Kennedy, J.,
concurring). However, “[w]hen a statute ‘specifies discrete factual predicates that the consular
officer must find to exist before denying a visa,’ the citation of the statutory predicates is itself
sufficient.” Id. (quoting Kerry, 135 S. Ct. at 2141 (Kennedy, J., concurring)).
In determining whether “a visa was denied for a bona fide and facially legitimate reason,”
the Court conducts a “limited review” under which it looks at “‘the face of the decision [to] see if
the officer cited a proper ground under the statute’”; it does “not look to see whether a consular
official properly construed and applied relevant provisions of law.” Matushkina, 877 F.3d at 294
(quoting Hazama v. Tillerson, 851 F.3d 706, 709 (7th Cir. 2017)). “Once that is done, if the
undisputed record includes facts that would support that ground,” then ordinarily the Court’s “task
is over.” Hazama, 851 F.3d at 709. The Seventh Circuit has also recognized the possibility, based
on Justice Kennedy’s concurring opinion in Din, 135 S. Ct. at 2141, that “an ‘affirmative showing
of bad faith’ that is ‘plausibly alleged with sufficient particularity’ might justify more searching
review.” Yafai, 912 F.3d at 1021. In other words, “evidence of behind-the-scenes bad faith” might
“overcome Mandel’s rule that courts must stick to the face of the visa denial in evaluating it,”
although “[i]t is unclear how much latitude—if any—courts have to look behind a decision that is
11
facially legitimate and bona fide to determine whether it was actually made in bad faith.” Id. at
1022.
Applying these standards, the Court concludes, as it did previously, that Plaintiffs have
failed to state a plausible claim that the consular officer’s decision was not facially legitimate or
bona fide or made in bad faith. The “face of the decision” challenged by Plaintiffs shows that the
consular officer “cited a proper ground under the statute” for denying Hani’s application.
Matushkina, 877 F.3d at 294. In particular, the consular officer determined that Hani made a
“material misrepresentation” in violation of 8 U.S.C. § 1182(a)(6)(C)(i), which provides that
“[a]ny alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has
sought to procure or has procured) a visa, other documentation, or admission into the United States
or other benefit provided under this chapter is inadmissible.” See [2-8] at 16, Ex. FFF.
Plaintiffs argue that the Consulate’s decision was not facially legitimate (and was also in
bad faith) because “the consular officer acted beyond his statutory authority and in violation of
regulations and procedures.” [38] at 5. In particular, Plaintiffs contend that, pursuant to 6 U.S.C.
§ 236(b)(1) and (c)(1), “DHS has the ultimate authority to refuse a visa, unless the refusal is related
to U.S. foreign policy or security interests, in which case the U.S. Department of State maintains
the ultimate authority to refuse a visa.” [38] at 3-4; see also [33-1] at 4. Therefore, Plaintiffs
argue, “the consular officer does not have authority to refuse a visa where the refusal would
contradict the DHS’s finding regarding the absence of marriage fraud, which is demonstrated by
DHS’s approval of the immigration visa petition.” [38] at 4.
As an initial matter, Plaintiffs’ arguments, even if correct, do not show that Hani was denied
a visa on an illegitimate basis because, in determining whether “a visa was denied for a bona fide
and facially legitimate reason,” the court does “not look to see whether a consular official properly
12
construed and applied relevant provisions of law.” Matushkina, 877 F.3d at 294. Instead, it is to
conduct a “‘limited review’” under which it looks at “‘the face of the decision [to] see if the officer
cited a proper ground under the statute.’” Matushkina, 877 F.3d at 294 (quoting Hazama, 851
F.3d at 709).
In any event, the statutes cited by Plaintiffs do not support their argument that the consular
officer lacked authority to deny Hani a visa. To the contrary, 6 U.S.C. § 236(b)(1) provides that
“the Secretary [of DHS] shall not have authority to alter or reverse the decision of a consular
officer to refuse a visa to an alien.” 6 U.S.C. § 236(c)(1) authorizes the Secretary of State to “direct
a consular to refuse a visa to an alien if the Secretary of State deems such refusal necessary or
advisable in the foreign policy or security interests of the United States”; it does not limit a
consulate’s ability to refuse a visa. Thus, Plaintiffs provide no statutory support for their
conclusion that “the consular officer does not have authority to refuse a visa where the refusal
would contradict the DHS’s finding regarding the absence of marriage fraud, which is
demonstrated by DHS’s approval of the immigration visa petition.” [38] at 4. Further, there is no
plausible factual basis alleged for Plaintiffs’ conclusion that DHS made any “finding,” id., that
“Hani did not engage in marriage fraud with Ms. Muna.” [33-1] at 16. The proposed amended
complaint contains no allegations from which it could plausibly be inferred that USCIS was aware
of legacy INS’s previous revocation, somehow decided that legacy INS’s decision must have been
wrong, made a “finding” of no marriage fraud, and therefore approved the petition.
Plaintiffs also contend that the consular officer’s decision was not facially legitimate
because it did not comply with the procedures set forth in the Foreign Affairs Manuel (“FAM”).
According to Plaintiffs, “consular officers are required to return DHS-approved immigrant visa
petitions back to the DHS USCIS for revocation procedures if he or she suspects marriage fraud.”
13
[38] at 4; see also [33-1] at 21 (citing 9 FAM 504.2-5(C)(2) (“If the consular officer receives a
DHS-approved petition and upon review determines that the marriage was entered into for the
purpose of evading the immigration laws, the consular officer must return the petition to the
National Visa Center (NVC), which will forward to DHS for review and possible revocation.”).
In the sur-reply brief filed by the Government at the Court’s request, Defendants assert: “9
FAM 504.2-8(A)(2) only requires a consular officer to return a petition to USCIS if the consular
officer knows or has reason to believe that the current petition for which the applicant is using as
a basis to apply for an immigrant visas was obtained by fraud or misrepresentation. Here, where
the fraud related to a prior marriage and petition, the FAM does not apply.” [40] at 3 (emphasis
added). The provision cited by Defendants provides that “You will suspend action and return the
petition to USCIS (see 9 FAM 504.2-8(B)(1) below through NVC if: ***(2) (U) You know, or
have reason to believe, the petition approval was obtained by fraud, misrepresentation, or other
unlawful means.” 9 FAM 504.2-8(A)(2).
The FAM provisions cited by the parties are dense, complicated, and not particularly clear,
and neither party explains its interpretation of the FAM in sufficient detail to allow the Court to
come to a confident conclusion about whether the consulate complied with the FAM in Hani’s
case. But the Court need not make such a determination to evaluate whether Plaintiff states a claim
upon which relief may be granted. Even if USCIS did not comply with the FAM, that alone is
insufficient to overcome the doctrine of consular non-reviewability. It does not render the consular
officer’s decision facially illegitimate, because that analysis looks to whether the consulate cited a
valid statutory basis for inadmissibility, Yafai, 912 F.3d at 1018—not “whether a consular official
properly construed and applied relevant provisions of law.” Matushkina, 877 F.3d at 294. Further,
the FAM is not even a “relevant provision[] of law”; it is an agency manual. See Christensen v.
14
Harris County, 529 U.S. 576, 587 (2000) (observing that interpretations contained in policy
statements, agency manuals, and enforcement guidelines “lack the force of law”); Waxler v.
Tillerson, 2017 WL 8185853, at *5 (C.D. Cal. 2017) (explaining that “[t]he Court need not address
the substance” of plaintiff’s claim that the denial of her visa “violated the precedent of the Board
of Immigration Appeals and the guidelines set forth in the State Department’s Foreign Affairs
Manual,” because “the Court cannot consider alleged procedural failings under the facially
legitimate and bona fide reason standard set forth in Din”).
Further, the facts alleged by Plaintiffs do not plausibly support a conclusion that the
consulate officers’ alleged failure to comply with the FAM is “evidence of behind-the-scenes bad
faith.” Din, 135 S. Ct. at 2141 (Kennedy, J., concurring). The consular officer was not the one
who determined that Hani had engaged in marriage fraud—Legacy INS made that determination
years earlier, and the consular officer simply recognized that decision. Plaintiffs’ challenge is
really a challenge to legacy INS’ decision. But the Seventh Circuit held a decade and a half ago
that legacy INS’ “decision to revoke [Hani’s] previously approved visa petition pursuant to 8
U.S.C. § 1155 [was] expressly left to the discretion of the Attorney General.” El Khader, 366 F.3d
at 568.
The Court also is not persuaded by Plaintiffs’ argument that, if the consulate had followed
the proper procedure, Hani would have had “an opportunity to rebut the allegations of marriage
fraud in revocation procedures” set out in 8 C.F.R. §103.2(b)(16)(i). [38] at 5. The proposed
amended complaint selectively quotes from this regulation to argue that “before the USCIS can
revoke the Form I-130 immigrant visa petition, it must issue a Notice of Intent to Revoke to the
petitioner in which ‘he/she shall be advised of this fact and offered an opportunity to rebut the
information and present information in his/her own behalf before the decision is rendered.’” [33-
15
1] at 21, ¶ 83 (quoting 8 C.F.R. §103.2(b)(16)(i)). But the cited provision applies only where there
is “derogatory information unknown to petitioner or applicant,” which Plaintiffs do not claim to
be the case here. 8 C.F.R. §103.2(b)(16)(i) (“If the decision will be adverse to the applicant or
petitioner and is based on derogatory information considered by the Service and of which the
applicant or petitioner is unaware, he/she shall be advised of this fact and offered an opportunity
to rebut the information and present information in his/her own behalf before the decision is
rendered, except as provided in paragraphs (b)(16)(ii), (iii), and (iv) of this section. Any
explanation, rebuttal, or information presented by or in behalf of the applicant or petitioner shall
be included in the record of proceeding.” (emphasis added)). It is clear from the proposed
amended complaint that Plaintiffs were well aware of legacy INS’ previous determination that his
marriage to Muna was illegitimate.
In support of their contention that the consular officer’s decision was not facially legitimate
or bona fide, Plaintiffs also cite “strong evidence that Hani did not commit marriage fraud,”
including “Ms. Muna’s own alleged admissions to the legacy INS investigators that she began a
relationship with Hani according to Arabic and Islamic custom and that she married Hani because
of her parents’ wishes,” and expert and lay witness affidavits obtained by Plaintiff in the legacy
INS proceeding and subsequent proceedings. [38] at 5-6. But this evidence focuses on the strength
of the applicant’s underlying case, not whether the consulate’s decision is facially legitimate and
bona fide—which, in turn, simply focuses on whether a valid statutory basis of admission was
cited. Nor is Plaintiffs’ alleged “strong evidence” sufficient to support a plausible claim that the
consular officer acted in bad faith. In Yafai, the Seventh Circuit rejected a similar “bad faith”
argument that was based on a claim that “the evidence [the visa applicants] produced was strong,
and the officer did not accept it.” 2019 WL 101829, at *3. As in Yafai, “the fact that the officer
16
did not believe” Hani’s “evidence does not mean that the officer was dishonest or had an illicit
motive,” as required to demonstrate bad faith. Id. at *4.
Finally, the allegations of the proposed amended complaint and the exhibits attached to the
original complaint (on which Plaintiff relies to support the proposed amended complaint, as well,
see [33-1] at 5, n.1) include facts in the record that support the consular officer’s determination.
The proposed amended complaint acknowledges that the consular officer’s decision “was based
on the previous allegations of marriage fraud.” [33-1] at 17. The proposed amended complaint
further recognizes that in December 2001, legacy INS issued a NOIR to revoke Hani’s approved
Form I-140 petition on the basis that Hani had entered into a sham marriage with Muna for the
purpose of obtaining an immigration benefit. Id. at 14. According to the proposed amended
complaint, “[a] sham marriage or fraudulent marriage is a marriage which may comply with all
the formal requirements of the law but which the parties entered into with no intent, or ‘good faith,’
to live together and which is designed solely to circumvent the immigrations laws.” Id. at 28
(citing Matter of McKee, 17 I&N Dec. 332 (BIA 1980)). The record submitted with the original
complaint includes legacy INS’s report documenting Muna’s interview with an INS investigator
concerning her marriage to Hani. According to the report, Muna stated that “[i]t was understood”
that the marriage ceremony “was not in fact a real marriage in her custom,” that “the marriage was
not consummated,” that Muna and Hani “never co-habituated” or established “any joint accounts,”
that Muna “felt she was never married,” and that Muna believed that Hani “entered into the
marriage to obtain legal status in the U.S.” [2-5] at 42. Despite Plaintiff’s assertion to the contrary,
this report, which Plaintiff admits is part of the record, “provides at least a facial connection” to
marriage fraud. Din, 135 S. Ct. at 2141 (Kennedy, J., concurring), and “forecloses any contention”
that Defendants were “imagining things” that had no support in the record. Morfin, 851 F.3d at
17
713. Similarly, in Din, the Justices who joined in Justice Kennedy’s concurring opinion concluded
that a visa applicant’s wife’s admission that her husband worked for the Taliban government
provided “at least a facial connection to terrorist activity” and thus a facially legitimate and bona
fide reason for denying the husband an immigrant visa for engaging in terrorist activity. Id.
Plaintiff alleges in the proposed amended complaint that the report was “never signed by
Ms. Muna and was based on hearsay statements allegedly made by Ms. Muna to the INS special
investigator.” [33-1] at 14. However, Plaintiff does not develop any argument or cite any case
law suggesting that the interview notes are not properly considered as part of the record simply
because they are not signed. The Court’s own research suggests that the contrary is true, as
“[h]earsay is admissible in immigration proceedings as long as it is probative and its use is not
fundamentally unfair.” Sehgal v. Lynch, 813 F.3d 1025 (7th Cir. 2016). Ms. Muna’s own
perspective on her marriage to Hani is obviously probative to a determination of whether the
couple’s marriage was legitimate, and Plaintiffs do not contend that the use of the interview notes
is fundamentally unfair.
Even if the notes were ignored, however, the record contains additional support for the
consular officer’s decision. Most importantly, the record provided by Plaintiffs includes legacy
INS’ “Notice of Decision to Revoke Approved Petition for Skilled Worker or Professional.” See
[2-7] at 45-49. Contrary to Plaintiffs’ repeated claims that the allegations of marriage fraud were
“unsubstantiated,” see [33-1] at 17, 26, as well as their claim that legacy INS “failed to address”
the evidence Hani submitted concerning arranged marriages in the Muslim faith, see id. at 30,
legacy INS’s decision provides a detailed summary of its investigation, the basis for its conclusion
that conclusion that Hani’s previously approved Form I-140 visa should be revoked, and the
reasons why it did not find Hani’s evidence persuasive. The notice explains, among other things:
18
According to the Service’s investigation, the marriage between Mr. ElKhader and Ms. Muna was a sham and was entered into for the purpose of procuring
an immigration benefit. The documents submitted by Mr. El-Khader have been
considered. Although Islamic marriage customs may differ than those traditionally
found in the United States, Mr. El-Khader has not submitted any evidence to
establish a bona fide commitment to Ms. Muna during the entire course of their
marriage. It is this relationship upon which Mr. El-Khader was seeking to adjust
status.
Mr. El-Khader outlines in his affidavit the few times that he visited his
spouse. Yet, he failed to show any level of commitment to her with the exception
of a few claimed gifts, a deferred dowry and a marriage contract. Mr. El-Khader
listed his spouse as living with him and claimed this information to be true on more
than one occasion to the Service. Yet, they had never lived together, never
consummated the marriage and had no commingling of personal property,
liabilities or finances[.]
Mr. El-Khader did not present any documentation to indicate that he and his
spouse had any joint savings or checking accounts or any liabilities, such as joint
credit cards. Mr. El-Khader did not even provide evidence of medical, health or
car insurance for his spouse during their marriage.
Mr. El-Khader simply listed Ms. Muna as his spouse, then tried to convince
the Service that they were living together, had problems and then stopped living
together. Now, Mr. El-Khader admits that they did not live together and that they
did not consummate the marriage through a mutual agreement based upon Islamic
marriage customs. Mr. El-Khader did not establish that he had any commitment to
his spouse other than a few claimed visits and a marriage contract. Yet, Mr. ElKhader attempted to procure an immigration benefit through this fraudulent
marriage and attempted to make it appear that he and his spouse had resided
together.
The Service has considered the affidavits and information provided on the
Islamic culture. However, this evidence has not overcome the Service’s intent to
revoke the approved petition. The bottom line is that Mr. El-Khader led the Service
to believe that he and his spouse lived together and had a bona fide marital
relationship. Even though the marriage was an arranged marriage, Mr. El-Khader
failed to establish any commitment to his marital union other than filing for
adjustment of status. The marriage was never consummated. Therefore, it is the
decision of the Service that this petition be revoked as of the date of approval.
[2-7] at 45-49 (Ex. VV).
The fact that Plaintiffs can point to other evidence in the record that they contend would
support a finding that Hani and Muna’s marriage was legitimate does not undermine the facial
19
legitimacy of the consular officer’s decision or create a “dispute” as to the contents of the
underlying record. Plaintiffs claim that “the facts regarding Hani’s marriage to Ms. Muna are in
dispute,” but the cited portions of the proposed amended complaint do not identify any factual
disputes. Plaintiffs first cite the allegation that “Hani has maintained his innocence regarding the
accusation of marriage fraud throughout his immigration case.” [33-1] at 27, ¶ 101. That is Hani’s
position on a legal conclusion, not a fact. Plaintiffs also cite to their allegation that Muna’s report
to INS special investigators was unsigned and “contradictory and internally inconsistent because
she admits that her relationship and marriage to Hani was in accordance with Islamic law and at
the wishes of her parents but then claims it was not a real marriage.” [33-1] at 27, ¶ 102 (citing
Ex. MM). That is Plaintiffs’ characterization of Muna’s statement and the conclusions that should
properly be drawn from it, not a factual dispute. Finally, Plaintiffs cite to “the FBI and Customs
Officer’s reports” contained in the record. [33-1] at 27, ¶ 102 (citing Exs. VV, WW). These
simply show that the FBI and customs declined to pursue charges against Plaintiff; they do not
contain any discussion of the facts at all and were created before legacy INS issued its notice of
decision. See [2-7] at 43 (Ex. VV); [2-7] at 44 (Ex. WW). In sum, Plaintiffs do not identify any
factual disputes, but instead challenge the legal conclusion reached by legacy INS, and
subsequently recognized by the consular officer, that Hani’s marriage to Muna was a sham. Given
Muna’s statement and legacy INS’s detailed decision explaining the basis for revoking Hani’s
previously approved Form I-140 visa—including that the marriage had not been consummated,
that Hani falsely represented that MUNA lived with him, and that there was no commingling of
personal property, liabilities, or finances—it was well within the consular officer’s exercise of
discretion to conclude that the marriage was not legitimate.
20
For these reasons, the Court concludes that the proposed amended complaint fails to
plausibly allege that the consulate officer denied Hani’s visa application for a reason that was not
bona fide or facially legitimate or that the consulate officer acted in bad faith. Given that
conclusion, it would be futile to allow Plaintiffs to proceed on Count One or Count Two of the
proposed amended complaint, for violations of Due Process. And, where (as here), the doctrine
of consular non-reviewability applies, it also bars an indirect challenge to the consular officer’s
visa decision. See Matushkina, 877 F.3d at 295 (stating that “[c]ourts have applied the doctrine of
consular nonreviewability even to suits where a plaintiff seeks to challenge a visa decision
indirectly”); cf. Yafai, 912 F.3d at 1023 (dismissing claim under the APA because doctrine of
consular nonreviewability applies). Because Plaintiffs’ First Amendment (Count Four) and Equal
Protection (Count Five) claims indirectly seek to overturn the consular officer’s decision, they are
legally barred and thus provide no valid basis for proceeding with an amended complaint.
IV.
Conclusion
For these reasons, Plaintiffs’ motion for leave to file an amended complaint [33] is denied.
As noted above, given the nature of these claims, the Court will give Plaintiffs one last opportunity
to file a motion for leave to amend no later than February 24, 2020, if they believe that a claim can
be stated consistent with the Court’s opinions. If no motion for leave is filed by that date—or if
Plaintiffs advise the Courtroom Deputy that they will not be seeking leave to amend prior to that
date—the Court will enter a final and appealable judgment under Federal Rule of Civil Procedure
58 and terminate this case in the district court.
Dated: February 4, 2020
____________________________
Robert M. Dow, Jr.
United States District Judge
21
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