Al Himyari et al v. Cissna et al
Filing
60
ORDER granting 42 Amended Motion to Dismiss. Signed by District Judge Arthur J. Tarnow. (MLan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
AL HIMYARI, ET AL.,
Case No. 18-10242
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW
Plaintiffs,
v.
CISSNA, ET AL.,
U.S. MAGISTRATE JUDGE
STEPHANIE DAWKINS DAVIS
Defendants.
/
ORDER GRANTING DEFENDANTS’ AMENDED MOTION TO DISMISS [42]
Plaintiffs, Yemeni nationals and their U.S. citizen and/or lawful permanent
resident family members petitioning on their behalf, commenced this action seeking
a writ of mandamus ordering U.S. Citizenship and Immigration Services (“USCIS”)
to compel adjudication of their Form I-130 petitions on that grounds that
adjudication has been unlawfully withheld and unreasonably delayed.
Before the Court is Defendants’ Amended Motion to Dismiss the Third
Amended Complaint [42] filed on September 20, 2018. The Motion is fully briefed.
On April 11, 2019, the Court held a hearing on the Motion. For the reasons explained
below, the Court will GRANT Defendants’ Motion to Dismiss [42].
FACTUAL BACKGROUND
Plaintiffs are Yemeni nationals and their U.S. citizen and/or lawful permanent
resident family members petitioning on their behalf. Plaintiffs have filed Form IPage 1 of 13
130s, Petitions for Alien Relative, with USCIS in accordance with the Immigration
and Nationality Act (“INA”). These petitions provide a means for citizens and lawful
permanent residents to help family members abroad legally immigrate to the United
States. Plaintiff-Beneficiaries seek lawful admission to this country to escape the
war in Yemen and to reunite with their families who live here.
Form I-130 applications require that the petitioner provide documentary
evidence which establishes his or her familial relationship with the beneficiary
abroad. 8 C.F.R. § 204.1. This includes primary evidence, such as birth certificates
and passports; and secondary evidence, such as affidavits, medical records, and
religious documents where necessary. 8 C.F.R. § 204.2. As part of the adjudication
process, USCIS may also request additional evidence and conduct in-person
interviews.
In processing I-130s, USCIS subjects petitions from Yemen to greater
scrutiny than it does petitions from other countries. The policy for Yemeni I-130
petitions (“the Policy”) is set forth in Chapter 21 of USCIS’s Adjudicator’s Field
Manual. USCIS ADJUDICATOR’S FIELD MANUAL, CHAPT. 21.2 FACTORS COMMON
TO THE ADJUDICATION OF ALL RELATIVE VISA PETITIONS, PETITIONS ON BEHALF OF
ALIENS FROM YEMEN, available at https://www.uscis.gov/ilink/docView/AFM/
HTML/AFM/0-0-0-1/0-0-0-3481/0-0-0-3513.html#0-0-0-387.
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The Policy is expanded upon in a USCIS Policy Memorandum issued on May
25, 2012. USCIS POLICY MEMORANDUM, SUPPLEMENTAL GUIDANCE
ADJUDICATING
FAMILY-BASED
PETITIONS
SUPPORTED
BY
FOR
RELATIONSHIP
DOCUMENTS ACTUALLY OR PURPORTEDLY ISSUED BY A CIVIL AUTHORITY IN YEMEN;
REVISIONS TO THE ADJUDICATOR’S FIELD MANUAL (AFM) CHAPTER 21 (2012).
USCIS routinely approves I-130 petitions from other countries upon receipt
of the application and primary evidence. In adjudicating Yemeni petitions, however,
USCIS requires petitioners to submit secondary evidence (including DNA evidence)
and participate in interrogative in-person interviews. This heightened scrutiny and
security results in lengthy processing times for Yemeni petitions.
RELEVANT PROCEDURAL HISTORY
On January 22, 2018, Plaintiffs, through counsel, filed a Petition for a Writ of
Mandamus seeking prompt, good faith adjudication of their pending I-130s under
the Administrative Procedures Act (“APA”).
On September 5, 2018, Plaintiffs filed a Third Amended Complaint [37].
Defendants filed a Motion to Dismiss [41] on September 18, 2018, and an Amended
Motion to Dismiss [42] on September 20, 2018. Plaintiffs filed a Response [43] on
October 9, 2018. Defendants filed a Reply [45] on October 23, 2018.
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On April 11, 2019, the Court held a hearing on the Motion at which it ordered
the parties to file supplemental briefing and provide a status update on Plaintiffs’
pending I-130s. On May 24, 2019, the parties filed supplemental briefs [58, 59].
STATUS OF I-130 PETITIONS
Defendants have submitted documentation which establishes that USCIS has
adjudicated most of the I-130 petitions in the Third Amended Complaint
(“Complaint”). Of the sixty petitions referenced in the Complaint, a total of seven
remain pending.
Four of the seven were filed by Plaintiff-Petitioner Wail Hussein, a U.S.
lawful permanent resident petitioning on behalf of his spouse and three children. The
Hussein family’s case is being processed at the Detroit Field Office.
Of the three additional petitions, two (filed by Gamal Alkaream Alharbi and
Mohamed Al Ameri) are pending at the New York Field Office and one (filed by
Hayan Kassim) is pending at the Nebraska Service Center.
LEGAL STANDARDS
Defendants move to dismiss the Complaint pursuant to Fed. R. Civ. P.
12(b)(1) for lack of subject matter jurisdiction. “[Plaintiffs] ha[ve] the burden of
proving jurisdiction in order to survive the motion.” Mich. S. R.R. Co. v. Branch &
St. Joseph Cntys. Rail Users Ass’n., Inc., 287 F.3d 568, 573 (6th Cir. 2002).
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Defendants also move to dismiss this action pursuant to Fed. R. Civ. P.
12(b)(6). “To survive a motion to dismiss, [plaintiffs] must allege ‘enough facts to
state a claim to relief that is plausible on its face.’” Traverse Bay Area Intermediate
Sch. Dist. v. Mich. Dep’t of Educ., 615 F.3d 622, 627 (6th Cir. 2010) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). On a Rule 12(b)(6) motion to
dismiss, the Court must “assume the veracity of [the plaintiffs’] well-pleaded factual
allegations and determine whether the plaintiff[s] [are] entitled to legal relief as a
matter of law.” McCormick v. Miami Univ., 693 F.3d 654, 658 (6th Cir. 2012) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).
ANALYSIS
Plaintiffs allege that Defendants have unlawfully withheld and unreasonably
delayed the adjudication of their I-130 petitions in violation of the APA. Third
Amend. Compl. ¶ 323(c). Plaintiffs further allege that by subjecting their I-130
petitions to a separate adjudicative scheme and causing unreasonable delay in the
adjudication process, Defendants have violated their constitutional rights to be free
from discrimination on the basis of race, religion, and national origin. Third Amend.
Compl. ¶¶ 348-49.
Plaintiffs’ prayer for relief is two-fold: an order mandating proper, and
prompt, adjudication of all pending I-130s within thirty days; and a declaration that
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Defendants’ delay in the adjudication of Plaintiffs’ I-130s violates their
constitutional rights and is unlawful and unreasonable under the APA.
A. The claims of Plaintiffs whose I-130 petitions have already been
adjudicated are moot.
This Court may not retain jurisdiction over a case “in which one or both of the
parties plainly lacks a continuing interest.” Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 170 (2000). Consequently, claims must be
dismissed as moot where “no effective relief for the alleged violation can be given.”
Coal. for Gov’t Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435, 458 (6th Cir.
2004).
Defendants argue that the Court should dismiss as moot the claims of the fiftythree Plaintiffs whose I-130s have been adjudicated because these Plaintiffs have
already received the relief sought at the commencement of this action.
Plaintiffs concede that an APA claim brought by a petitioner demanding an
order compelling adjudication of an application filed with USCIS becomes moot if
the application is approved or denied. See Kembi v. I.N.S., 8 Fed. App’x. 328, 330
(6th Cir. 2001).
Plaintiffs argue, however, that their claims are not moot because they are
“capable of repetition, yet evading review.” This limited exception to the mootness
doctrine applies where “(1) the challenged action was in its duration too short to be
fully litigated prior to its cessation or expiration, and (2) there was a reasonable
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expectation that the same complaining party would be subjected to the same action
again.” Weinstein v. Bradford, 423 U.S. 147, 149 (1975).
Plaintiffs contend that it is possible that none of their petitions will remain
pending long enough to litigate the constitutionality of the Policy. Plaintiffs further
contend that there is a reasonable expectation that they may file I-130 petitions on
behalf of different relatives in the future or reapply on behalf of the same relatives
following denial of their petition.1
Plaintiffs fail to satisfy the first prong. Because there are no specific time
limits within which USCIS must process I-130 applications, Plaintiffs cannot
establish that the adjudication process is inherently limited in duration for purposes
of satisfying this exception to the mootness doctrine. See Doe No. 1 v. Reed, 697
F.3d 1235, 1240 (9th Cir. 2012) (noting that “cases that qualify under prong one
present controversies of inherently limited duration.”).
Moreover, Plaintiffs’ argument for evading mootness undermines their
request for expeditious adjudication of their I-130s. Plaintiffs seek prompt
adjudication under § 706(1), but complain, for the sake of saving their constitutional
Plaintiffs’ counsel has filed near-identical actions in the Northern District of
California, Southern District of New York, and Eastern District of New York. The
Northern District of California found the plaintiffs’ claims moot because they could
not show that they were of inherently limited duration. Mohamed v. Nielsen, No. 18cv-00467-SK, 2018 WL 4361183, at *2 (N.D. Cal. Sept. 11, 2018). The decision is
on appeal with the Ninth Circuit.
1
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claims, that USCIS may adjudicate their I-130s too quickly to sustain a live
controversy for purposes of judicial review.
But Plaintiffs cannot separate their constitutional claims from their APA
claims. The APA is the statute under which Plaintiffs assert their cause of action.
Furthermore, the APA provides the applicable waiver of sovereign immunity in
cases, such as this one, where Plaintiffs seek injunctive relief from the federal
government for alleged legal wrongs, including constitutional violations. See
Krafsur v. Davenport, 736 F.3d 1032, 1036 (6th Cir. 2013). That Plaintiffs have
challenged the constitutionality of the Policy in conjunction with their claim to
compel agency action does not remove such claims from the scope of the APA. See
Alkady v. Luna, No. 1:18-CV-1-TLS, 2019 WL 984233, at *4 (N.D. Ind. Feb. 28,
2019) (“[I]nvoking the violation of a constitutional right does not impart federal
subject matter jurisdiction where there is no actual case or controversy.”).
Finally, Plaintiffs’ claim that this Court will never have the opportunity to
reach the underlying constitutional issues because Defendants could render moot
any individual claim by issuing an adjudication decision is unfounded. Should a
petitioner whose I-130 has been adjudicated seek review of that decision, and wish
to raise any constitutional concerns underlying the decision, she may either
administratively appeal to the Board of Immigration Appeals or file suit in a district
court for review of a final agency action under § 706(2). As the Court understands
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it, Plaintiffs here ask the Court not to set aside USCIS’s findings under § 706(2), but
rather to compel agency action under § 706(1).
Fifty-three Plaintiffs have received precisely the agency action they seek to
compel.2 See Alkady, 2019 WL 984233, at *4 (dismissing the claims as moot where
the plaintiffs were not “challenging the discretionary grant or denial of individual
petitions . . . . all that [was] left [was] to compel adjudication, which [was] a duty
the Defendants ha[d] already performed.”). The claims of these Plaintiffs are moot
because neither an order compelling adjudication of their I-130 petitions nor an order
declaring that the Policy discriminates against them in violation of the Constitution
would affect them. See McPherson v. Michigan High Sch. Athletic Ass’n, Inc., 119
F.3d 453, 458 (6th Cir. 1997). Because fifty-three Plaintiffs cannot establish that
their claims fall within an exception to the mootness doctrine, the Court will dismiss
them from this action.3
Plaintiffs’ counsel has successfully obtained relief for fifty-three of her clients. As
the Court stated at the hearing: “I think you are underestimating the good that you
have done for your clients by not recognizing that you have already a major portion
[of] the relief you sought which is to get immediate consideration of those 60 people
who started this case.” Hr’g Tr. 40:3-7, Apr. 11, 2019. The Court pauses to note that
it would consider counsel’s relative success in a post-judgment motion for attorney’s
fees.
3
Plaintiffs also assert the “voluntary cessation” exception to mootness which
provides that “a defendant’s voluntary cessation of a challenged practice does not
deprive a federal court of its power to determine the legality of the practice.” Friends
of the Earth, 528 U.S. at 189. This exception does not save Plaintiffs’ claims. Even
if the Court were to find that adjudication of Plaintiffs’ I-130s did not moot their
claims, the Court would still dismiss Plaintiffs from this action because their claims
2
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B. Venue is improper for Plaintiffs whose I-130 petitions are pending
outside of this District.
The I-130 petitions of Gamal Alkaream Alharbi, Mohamed Al Ameri, and
Hayan Kassim are pending at USCIS offices outside of Michigan. According to
Defendants’ submissions: Alharbi is a U.S. citizen and New York resident whose
petition is pending at the New York Field Office; Al Ameri is a lawful permanent
resident and New York resident whose petition is pending at the New York Field
Office; and Kassim is a U.S. citizen and Saudi Arabian resident whose petition is
pending at the Nebraska Service Center. Dkt. #59 at 3. Plaintiffs do not dispute these
representations.
Under the doctrine of forum non conveniens, the Court declines to exercise
jurisdiction over these Plaintiffs. See Hefferan v. Ethicon Endo-Surgery Inc., 828
F.3d 488, 492 (6th Cir. 2016). In reaching its decision, the Court considers three
factors: the degree of deference owed to Plaintiffs’ choice of forum, whether an
adequate alternative forum exists, and the extent to which Plaintiffs’ chosen forum
is unnecessarily burdensome. Id.
First, little deference is owed to Plaintiffs’ choice of forum as these Plaintiffs
neither reside in this District nor have petitions pending here. Plaintiffs have not
are not ripe for review. See Ammex, Inc. v. Cox, 351 F.3d 697, 706 (6th Cir. 2003)
(noting that “the ripeness inquiry arises most clearly when litigants seek to enjoin
the enforcement of statutes, regulations, or policies that have not yet been enforced
against them.”).
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provided the Court with any documentation suggesting that they have connections
to Michigan or the Detroit Field Office. Second, the Southern District of New York
is a suitable alternative for Alharbi and Al Ameri to litigate their claims.4 With
respect to Kassim, who resides in Saudi Arabia, the jurisdiction where his petition is
pending is a more appropriate forum than Detroit. Finally, the Court has little interest
in engaging in a fact-intensive review of I-130 petitions filed by petitioners who
have no connection to this District. See id. at 500. Therefore, the Court will dismiss
their claims without prejudice to refiling in the appropriate forum.
C. Plaintiffs whose I-130 petitions are pending at the Detroit Field Office
have failed to state a claim for relief.
Plaintiffs Wail Hussein and his beneficiaries (“Hussein family”) request a writ
of mandamus ordering Defendants to properly adjudicate their I-130 petitions and
issue a final decision within thirty days. Plaintiffs allege that Defendants have
unreasonably delayed and withheld their nondiscretionary duty to adjudicate
Plaintiffs’ I-130 petitions in violation of the APA and Fifth Amendment. Third
Amend. Compl. ¶¶ 316-318.
On February 26, 2018, Wail Hussein filed four I-130 petitions on behalf of his
spouse and three minor children. Plaintiffs argue that the sixteen-month period
In the action currently pending in S.D.N.Y., Plaintiffs’ counsel may wish to seek
leave to amend the complaint to add Alharbi and Al Ameri as plaintiffs. See
Altowaiti, et al. v. Nielchild, et al., No. 18-cv-00508 (S.D.N.Y. Jan. 19, 2018).
4
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within which their applications have been pending satisfies the “unreasonable delay”
standard for purposes of stating a claim under § 706(1). Plaintiffs note that sixteen
months is more than Congress’s recommended processing time of 180 days for
immigrant benefit applications. See 8 U.S.C. § 1571. Plaintiffs further note that the
average processing times for I-130s were 7.7 months in 2017 and 9.6 months in the
first half of 2018. Plaintiffs maintain that the delay is rooted in discrimination against
Yemenis based on national origin.
Defendants argue that general USCIS processing times are of limited use in
determining whether the sixteen-month delay is so unreasonable as to warrant
mandamus relief. According to Defendants, this is because the processing time for
an I-130 petition depends heavily on the facts of the case. Defendants point out that
one of the reasons behind the delay here is the discovery of factual inconsistencies
in the Hussein family’s petitions. These inconsistencies are set forth in detail in the
declaration of USCIS Officer Batol Makki. [Dkt. #59-1 at ¶ 6].
Considering the factual inconsistencies in the Hussein family’s case, which
Plaintiffs do not dispute, the Court cannot say that the sixteen-month delay to which
the Hussein family has been subjected is so unreasonable as to warrant the “drastic
and extraordinary remedy” of mandamus relief. See Labaneya v. U.S. Citizenship &
Immigration Servs., 965 F. Supp. 2d 823, 826–27, 830 (E.D. Mich. 2013) (citing
cases which found that a three-year delay was not unreasonable on its face).
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Plaintiffs have made no allegations which pertain to the Hussein family’s case to
support their claim for relief at this time. Accordingly, the Court will dismiss their
claims without prejudice.
CONCLUSION
Plaintiffs’ concerns regarding the constitutionality of the USCIS Policy for
adjudicating I-130 petitions from Yemen may be valid. But a lawsuit to compel
agency action, filed by claimants whose petitions have already been adjudicated, is
not the proper vehicle for challenging the Policy’s discriminatory provisions.
Accordingly,
IT IS ORDERED that Defendants’ Motion to Dismiss [42] is GRANTED.
IT IS FURTHER ORDERED that the claims of Plaintiffs Gamal Alkaream
Alharbi, Mohamed Al Ameri, Hayan Kassim, and Wail Hussein are DISMISSED
without prejudice.
IT IS FURTHER ORDERED that the claims of all remaining Plaintiffs are
DISMISSED as moot.
SO ORDERED.
Dated: July 31, 2019
s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
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