Al Khader et al v. Tillerson et al

Filing 68

MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr on 3/28/2022. This is a civil action brought by Plaintiffs Raed Al Khader ("Raed") and Hani Hasan Ahmed El Khader a/k/a Al Khader ("Hani"), pursuant to the Administrative Procedure Act ("APA"), against Defendants, Antony Blinken (U.S. Secretary of State), Martina Strong (Charge D'Affaires, Riyadh, U.S. Department of State), Alejandro Mayorkas (U.S. Secretary of Homeland Security), Mer rick Garland (U.S. Attorney General), the U.S. Department of Homeland Security, and the U.S. Department of Justice. In their Third Amended Complaint [56-1], Plaintiffs seek to compel the consular office in Saudi Arabia to return their Form I-130 Pe tition to the U.S. Citizen and Immigration Services ("USCIS") for reconsideration. Currently before the Court is Defendants' Motion to Dismiss the Third Amended Complaint.1 For the following reasons, the Defendants' Motion to Dismiss 61 is granted. A final judgment in favor of Defendants and against Plaintiffs will enter consistent with Federal Rule of Civil Procedure 58. Civil case terminated. Emailed notice(cdh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RAED AL KHADER, et al.,
Plaintiff,
v.
ANTONY BLINKEN, Secretary of the
U.S. Department of State, et al.,
Defendants.

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Case No. 18-cv-1355
Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER
This is a civil action brought by Plaintiffs Raed Al Khader (“Raed”) and Hani Hasan
Ahmed El Khader a/k/a Al Khader (“Hani”), pursuant to the Administrative Procedure Act
(“APA”), against Defendants, Antony Blinken (U.S. Secretary of State), Martina Strong (Charge
D’Affaires, Riyadh, U.S. Department of State), Alejandro Mayorkas (U.S. Secretary of Homeland
Security), Merrick Garland (U.S. Attorney General), the U.S. Department of Homeland Security,
and the U.S. Department of Justice. In their Third Amended Complaint [56-1], Plaintiffs seek to
compel the consular office in Saudi Arabia to return their Form I-130 Petition to the U.S. Citizen
and Immigration Services (“USCIS”) for reconsideration. Currently before the Court is
Defendants’ Motion to Dismiss the Third Amended Complaint. 1 For the following reasons, the

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Previously, the Court has allowed Plaintiffs multiple opportunities to amend their complaint seeking to obtain relief
from an administrative decision denying Plaintiff Hani an immigrant visa application and deeming Hani inadmissible
to the United States. [See 32, 55.] In its most recent order [55], the Court granted Defendants’ Motion to Dismiss the
Second Amended Complaint [42-2] on the grounds that (a) Plaintiffs failed to state a claim upon which relief could
be granted and (b) allowing further amendments would be futile to the extent that Plaintiffs were “seeking relief from
the Consulate’s decision that Hani is inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i) for a material misrepresentation.”
[55, at 7]. In the same Order, the Court gave Plaintiffs one last chance to amend their complaint limited to a “claim
that 22 C.F.R. § 42.43 required the Consulate to suspend action on Hani’s petition and case and return the petition,
with a report of the facts, for reconsideration by DHS.” [Id. at 11-12]. Plaintiff filed the Third Amended Complaint
on March 23, 2021. Knowledge of the Court’s prior opinions is assumed here. See [32, 41, 55]. See also Al Khader v.
Blinken, No. 18-CV-1355, 2021 WL 678701 (N.D. Ill. Feb. 22, 2021).

Defendants’ Motion to Dismiss [61] is granted. A final judgment in favor of Defendants and
against Plaintiffs will enter consistent with Federal Rule of Civil Procedure 58. Civil case
terminated.
BACKGROUND
I.

Procedural History
Plaintiff Raed, a U.S. citizen, filed a Form I-130 immigrant visa petition seeking a visa for

Hani, his non-citizen brother. U.S. Citizenship and Immigration Services (“USCIS”) (an office of
the U.S. Department of Homeland Security (“DHS”)) approved the petition. However, the U.S.
Consulate in Riyadh, Saudi Arabia, which must review petitions and decide whether to grant or
deny a visa, denied Hani a visa. According to the consular officer, Hani was ineligible for the visa
because he had engaged in marriage fraud years earlier, in a brief arranged marriage to Nadia Muna
(“Muna”) which ended in divorce.
In 2018, Plaintiffs filed a complaint against the U.S. Secretary of State, the Department of
State, the Consulate, the U.S. Secretary of Homeland Security, DHS, the U.S. Attorney General,
and the U.S. Department of Justice (“Defendants”). The Court’s prior rulings [32, 55] have granted
Defendants’ motions to dismiss with leave to replead. The Court’s most recent ruling allowed
leave to replead on the narrow claim “that 22 C.F.R. § 42.43 required the Consulate to suspend
action on Hani’s petition and case and return the petition, with a report of the facts, for
reconsideration by DHS.” See [55, at 11-12].
The current iteration of Plaintiffs’ complaint, the Third Amended Complaint, seeks to
compel the consular office to return Plaintiffs’ Form I-130 Petition to USCIS for reconsideration.
Plaintiffs contend that Defendants violated the “Administrative Procedures Act, 5 U.S.C. §§ 702,
704, and 706,” when they deemed Hani “inadmissible… based on alleged marriage fraud without

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providing Plaintiffs an opportunity to rebut the allegations” and when they failed to return “the
visa petition… to the DHS pursuant to 22 C.F.R. § 42.43.” [56-1, at 27, 31-32].
In opposition to the Third Amended Complaint, Defendants, once more, seek dismissal
pursuant to Federal Rule of Civil Procedure 12(b)(6), asserting that “22 C.F.R. § 42.43… does not
apply in this matter and, therefore, the consular officer has no mandatory duty to return
Plaintiffs’… Petition to USCIS for reconsideration.” [61, at 1]. Defendants further assert that “the
longstanding doctrine of consular nonreviewability prohibits” any indirect attempt by Plaintiffs to
“challenge the consular officer’s refusal of the visa application.” [61-2, at 1-2].
II.

Procedural Standards
In ruling on 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. Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir. 2011).

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III.

Allegations of Third Amended Complaint
The facts set out below are drawn from the Third Amended Complaint and are presumed

true for purposes of this Rule 12(b)(6) Motion to Dismiss. 2 Every reasonable inference from the
plausible and properly pled factual allegations have been made in favor of Plaintiffs’ asserted claim
for relief, as required for resolution of this Rule 12(b)(6) motion.
Following previous stints in the United States, Plaintiff Hani reentered the U.S. in July
1995 on an H-1B nonimmigrant visa. [56-1, at 15, ¶ 50]. While working and pursuing his graduate
degree, Plaintiff Hani determined that he was ready to marry. Because it is against his religion to
date, Hani sought help from his friends, Ahmad and Nada Ali, to introduce him to a suitable
partner. Id. at 15-16, ¶ 52]. Following an introduction by the Alis to Ms. Muna and a series of
customary visits between the Muna and Al Khader families, both families agreed to the marriage.
Id. at 16-17, ¶¶ 52-56. Ms. Muna and Plaintiff Hani formalized their union at a marriage contract
ceremony held at the Muna home on May 9, 1997. Id. at 19, ¶ 63. Several months into the marriage,
the newlyweds’ relationship began to deteriorate and on March 17, 1998, Ms. Muna filed for
divorce. Id. at 20-21, ¶ 70. The divorce was granted by the Milwaukee County Circuit Court on
October 27, 1998, and on December 13, 1998, the divorce was granted by an Imam under Islamic
law. Id. at ¶¶ 74-75.
In January 2001, the legacy Immigration and Naturalization Service (“INS”) initiated a
fraud and criminal investigation into Hani regarding his marriage to Ms. Muna. [56-1 at 22, ¶ 77].
Following its investigation, which included a personal interview of Ms. Muna, INS produced an
investigative report which contained statements allegedly made by Ms. Muna, but never received
Ms. Muna’s signature. [Id at 22-23, ¶¶ 77-78].
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The Court has culled out from the summary above any alleged facts in the Third Amended Complaint
based on characterizations, legal conclusions, or legal theories.

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Later that year, in September, Plaintiff Raed filed a Form I-130 immigrant visa petition on
behalf of Hani. [56-1 at 23, ¶ 79]. Years later, on July 28, 2006, U.S. Citizenship and Immigration
Services (“USCIS”) (an office of the U.S. Department of Homeland Security (“DHS”)) approved
Raed’s petition. [Id. at 2, ¶ 2]. Based on this approval, Plaintiff Hani applied for an immigrant visa
with the U.S. Department of State in 2012. Id. On July 16, 2015, the U.S. Consulate in Riyadh,
Saudi Arabia deemed Hani inadmissible under 8 USC 1182(a)(6)(C)(i) based on a consular
officer’s determination that Hani had made a material misrepresentation. [Id. at ¶ 4]. This
determination was based on the legacy Immigration and Naturalization Service’s (“INS”)
allegation that Plaintiff Hani had participated in marriage fraud through his short-lived marriage
to Ms. Muna.
IV.

Analysis
A.

Immigrant Visa Process Standards

The Court begins its analysis by setting out the immigrant visa process as a backdrop for
its consideration of the reach of 22 C.F.R. § 42.43 (“Section 42.43”). Generally, in order for nonAmericans to enter the United States, they must have an immigrant or nonimmigrant visa. 8 U.S.C.
§§ 1181(a), 1182(a)(7). Individuals seeking a visa based on a familial relationship with a U.S.
citizen must follow the process articulated in the Immigration and Nationality Act (“INA”), 8
U.S.C. § 1101 et seq. The INA’s process consists of two key steps. First, the U.S. citizen must file
a petition with USCIS on behalf of their non-American relative (“beneficiary”), requesting
classification of that beneficiary as an immediate relative. See 8 U.S.C. § 1154(a)(1); 8 C.F.R. §
204(a)(2), (d)(2), (g)(2). Second, if USCIS grants the beneficiary such a classification, the
beneficiary must then apply for a visa. See 8 U.S.C. §§ 1201(a), 1202(a).

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B.

Application of IVP Standards

In the instant case, it is undisputed that Plaintiffs demonstrated, and USCIS acknowledged,
Plaintiff Hani’s status as an immediate relative. [61-2 (MTD), at 6]. Plaintiffs thus met the first
requirement outlined in the INA process. It is the second requirement—that the consular office
approve and extend a visa—where Plaintiffs fall short. The consular officer rejected Hani’s visa
application based on the officer’s determination that Hani had made a material misrepresentation
prohibited under 8 USC 1182(a)(6)(C)(i). [Id. at 6-7].
To be clear, the INA’s two-step process focuses on different issues. The first step,
approving Raed’s Form I-130 petition, focused on Hani’s relationship to Raed. Defendants do not
contest the validity of Plaintiffs relationship as brothers. The second step, assessing Hani’s
eligibility to receive a visa, focused on Hani’s individual history and background, separate and
apart from his brother. 8 U.S.C. § 1202(b). The standards and eligibility requirements involved in
this second step are different from those involved in the first step. The rejection of Hani’s
application at the second stage had nothing to do with his relationship with Raed; rather, the
application failed based on what the consular officer found to be misrepresentations relating to his
brief marriage to Nadia Muna. In other words, the factual determination that Plaintiffs are
immediate relatives has no bearing on whether Hani previously “engage[d] in marriage fraud.”
[56-1 (3AC), at 26, ¶ 86].
As the Court previously has held, the doctrine of consular nonreviewability prohibits courts
from directly or indirectly reviewing the consular officer’s denial of the visa application. See [32],
[41], [55]; see also Matushkina v. Nielsen, 877 F.3d 289 (7th Cir. 2017) (explaining that the
doctrine of consular nonreviewability applies even where “a plaintiff seeks to challenge a visa
decision indirectly”). The question raised in the Court’s most recent ruling and amplified in

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Plaintiffs’ Third Amended Complaint is whether Section 42.43 provides an alternative basis for
some kind of relief. The Court directed Plaintiffs to put forward their best attempt to articulate a
claim on that basis, and they have done so. The parties have now fully briefed the legal issues.
To survive Defendants’ motion to dismiss [61], Plaintiffs must plausibly state a claim for
relief under Section 42.43. Plaintiffs have failed to do so. To begin, because no part of Section
42.43(a) applies in this case, the Court need not address Defendants’ argument that the doctrine of
consular non-reviewability would bar an indirect challenge to a visa denial. In 22 C.F.R. §
42.43(a), Congress directs that the “consular officer shall suspend action in a petition case and
return the petition, with a report of the facts, for reconsideration by DHS”, if any of three conditions
exists. The first condition comes into play “if the petitioner requests suspension of action.” Id. This
condition does not apply here because Plaintiffs never requested suspension of the action. The
second applies “if the officer knows or has reason to believe that approval of the petition was
obtained by fraud, misrepresentation, or other unlawful means.” Id. The word “petition” refers to
the Form I-130 Petition which, in this case, was filed by Raed on behalf of Hani requesting that
Hani be classified as an immediate relative. 8 U.S.C. §§ 1151(b)(2)(A)(i), 1154 (a)(1)(A)(i). No
one contends that Plaintiff Hani procured the classification of Raed as an immediate relative
through “fraud, misrepresentation, or other unlawful means.” 22 C.F.R. § 42.43(a). The third
condition under which the “consular officer shall suspend action” is if “the officer knows or has
reason to believe… that the beneficiary is not entitled, for some other reason, to the status
approved.” Id. Again, no one has advanced any reason that Plaintiff Hani would not be entitled to
classification as Raed’s immediate relative.
Plaintiffs offer many additional assertions in support of their position, but all of these miss
the mark as well. Plaintiffs allege “that DOS, legacy INS, and USCIS have acted in bad faith in

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Plaintiff Hani’s case” because there is “ample evidence” that Hani “entered into a good faith
marriage with Ms. Muna.” [56-1 (3AC), at 4, ¶ 10]. This argument fails because the challenged
action here is the consular office’s failure to return Plaintiffs’ petition to USCIS for reconsideration
and, as established, the consular office was under no obligation to do so and the Court lacks
authority to second guess these decisions in any event.
Plaintiffs also suggest that the consular officer’s rejection of Hani’s visa application is not
facially valid because USCIS had previously approved Plaintiffs Form I-130 Petition. [56-1, ¶¶
86, 96-97]. As set forth above, Plaintiffs’ argument misapprehends the visa application process
outlined in the INA, 8 U.S.C. § 1101 et seq. An approved visa petition is not a visa, nor does it
guarantee that a visa will be issued. 3A Am. Jur. 2d, ALIENS AND CITIZENS § 787. As such, it is
not improper for a consular officer to reject a visa application after the applicant’s Form I-130
petition was approved.
Finally, Plaintiffs’ contention that DHS has exclusive authority to grant visas is incorrect.
[56-1, ¶¶ 24-26, 103]. As set forth in 8 U.S.C. §§ 1104(a), 1201(a)(1), 1361, the decision whether
to issue a visa rests with the consular officer.
CONCLUSION
In sum, the Court has allowed Plaintiffs three opportunities to state a claim for relief of
some kind from the consular officer’s decision. None of those attempts has revealed a path
forward. The Court therefore grants Defendants’ motion to dismiss with prejudice and will enter a
final judgment consistent with Federal Rule of Civil Procedure 58. Civil case terminated.

Dated: March 28, 2022

__________________________
Robert M. Dow, Jr.
United States District Judge

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