Altowaiti et al v. Nielchild et al

Filing 77

OPINION & ORDER re: 71 MOTION to Amend/Correct Complaint filed by Hiyam Ahmed Manaa, Yaser Amulaiki, Nawal Ali, Mosleh Jeran, Raja Ahmed, Ali Jeran, Salem Hadi, Hanan Saeed, Mohamed Jeran, R.A. (2) (a minor child), Mlyon Al-Qadri, Ammar Saleh, Nouraldeen Altahami, Majed Al-Saidi, R.A. (1) (a minor child), Rim Altahami, Adel Ahmed, R.A. (3) (a minor child), Akram Algomai, A.A. (2) (a minor child), Ashraf Ahmed, Yasmen Saleh, Walad Altahami, Abeer Al So rmi, Saleh Alawi, Mounira Ali, I.A. (a minor child), M.A. (1) (a minor child), W.A. (a minor child), Amani Tahir Altowaiti, Neem Hadi, J.A. (1) (a minor child), Ali Hafeed, Ali Al Sormi, Safia Qasem, J.A. (3) (a minor child), Jamal A ltowaiti, Yousra Baker, M.A. (2) (a minor child), Takwa Algomai, Wejdan Assaidi, Salah Albatah, Kholoud Al-Awdi, Mugeeb Algohaim, Y.A. (a minor child), J.A. (4) (a minor child), Ali Alhomadi, Bushra Algohaim, Mohammed Al Sormi, N.A. (a minor child), Hanan Al Battah, J.A. (2) (a minor child), Ahmed Gubran, A.A. (1) (a minor child), Kald Jeran, Anwar Al Sormi, Asma Hadi, Nusra Saeed, 66 MOTION to Dismiss filed by Kristjen Nielsen. For the foregoing re asons, the Court GRANTS both Defendants' Motion to Dismiss and Plaintiffs' Motion to Amend. Plaintiffs are directed to file the Amended Complaint by May 19, 2020. The Clerk of Court is respectfully directed to terminate the motions, Docs. 66 and 71. (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JAMAL ALTOWAITI, AMANI TAHIR
ALTOWAITI, J.A. (1), a minor child, J.A.
(2), a minor child, J.A. (3), a minor child,
SALAH ALBATAH, HANAN AL
BATTAH, MUGEEB ALGOHAIM,
BUSHRA ALGOHAIM, AKRAM
ALGOMAI, TAKWA ALGOMAI, M.A.
(1), a minor child, M.A. (2), a minor child,
ASHRAF AHMED, NUSRA SAEED, R.A.
(1), a minor child, NOURALDEEN
ALTHAMI, MIYON AL-QADRI, RIM
ALTAHAMI, WALAD ALTAHAMI,
WEJDAN ASSAIDI, MAJED AL-SAIDI,
NAWAL ALI, AMMAR SALEH, ADEL
AHMED, MOUNIRA ALI, I.A., a minor
child, RAJA AHMED, R.A. (2), a minor
child, W.A., a minor child, A.A. (1), a
minor child, R.A. (3), a minor child, A.A.
(2), a minor child, N.A., a minor child,
YASER AMULAIKI, Y.A, a minor child,
MOSLEH JERAN, MOHAMED JERAN,
KALD JERAN, ALI JERAN, AHMED
GUBRAN, YOUSRA BAKER, ALI
HAFEED, KHOLOUD AL-AWDI,
YASMEN SALEH, ALI ALHOMADI,
SALEH ALAWI, HANAN SAEED, NEEM
HADI, ALI AL SORMI, MOHAMMED AL
SORMI, ABEER AL SORMI, ANWAR AL
SORMI, HIYAM AHMED MANAA,
ASMA HADI, J.A. (4), a minor child,
SALEM HADI, and SAFIA QASEM,
Plaintiffs,
– against –
LEE CISSNA, Director of Citizenship and
Immigration Services, KRISTJEN NIELSEN,
Secretary of the Department of Homeland
Security, THE U.S. ATTORNEY GENERAL,
and THE U.S. ATTORNEY’S OFFICE,
Defendants.

OPINION & ORDER
18 Civ. 508 (ER)

RAMOS, D.J.:
Plaintiffs—seventeen families of Yemeni descent, including Yemeni nationals and
their U.S. citizen and lawful permanent resident family members—bring suit against the
Director of Citizenship and Immigration Services (“USCIS”), the Secretary of the
Department of Homeland Security, the United States Attorney General, and the United
States Attorney’s Office for the Southern District of New York, alleging that they have
unlawfully delayed the adjudication of the visa applications of Yemeni nationals. Doc. 6.
eey bring claims under the Mandamus Act, the Administrative Procedure Act (the
“APA”) and the Declaratory Judgment Act, as well as substantive and procedural due
process claims under the United States Constitution. Before the Court is Defendants’
motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6),
Doc. 66, and Plaintiffs’ cross-motion to amend their complaint pursuant to Federal Rule
of Civil Procedure 15, Doc. 71. For the following reasons, both of these motions are
GRANTED.
I.

BACKGROUND
ee immediate relatives of U.S. citizens and lawful permanent residents may,

under certain circumstances, immigrate to the United States. To begin the process, the
U.S. citizen or lawful permanent resident must file an I-130, Petition of Alien Relative. 8
U.S.C. §§ 1151(b)(2)(A)(i), 1153(a), 1154(a)(1)(A)(i); 8 C.F.R. § 204.1(a)(1). Approval
of an I-130 petition means only that a relationship has been established; it does not grant
a visa or permanent resident status. See Scialabba v. Cuellar de Osorio, 573 U.S. 41, 47–
48 (2014). Instead, approval of the I-130 petition allows the beneficiary to proceed to the
second step of the process, which is to apply for a visa. See 8 U.S.C. §§ 1154, 1255(a).
Plaintiffs are Yemeni nationals and their U.S. citizen and legal permanent resident
family members who have filed “clearly approvable” I-130 petitions on their behalf.
Doc. 6. at 2. eey filed the instant action on January 19, 2018, alleging that USCIS had
failed to process their forty I-130 petitions, filed between July 24, 2013 and June 26,
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2017, within a reasonable processing time. Id. at 2, 11–22. eese delays were allegedly
“systemic” and “purposeful,” and “intended to target Muslim immigration to the United
States.” Id. at 2. Plaintiffs further allege that “[d]efendants have engaged in . . .
intentional and discriminatory practices, procedures, policies, and programs enacted to
stymy and prevent Yemeni Muslim immigration to the United States of America which
have resulted in unconscionable and purposefu[l] delays and denials in adjudication of
immigration benefits of Yemeni nationals.” Id. at 4. eese policies and procedures
included higher standards of proof to demonstrate family relationships, intentionally
delaying interviews, issuing frequent requests for more evidence and for DNA evidence,
requesting immaterial evidence, and subjecting minor infants to enhanced security
checks. Id. at 22–23.
When they first filed their petition, Plaintiffs sought mandamus relief, requesting
that this Court compel Defendants to properly adjudicate in good faith their I-130
petitions within thirty days and issue a final decision on the petitions. Id. at 24–25.
Additionally, they brought claims under the APA, for improperly failing to act on their
petitions, id. at 25–27; under the Declaratory Judgment Act, seeking a declaration that
Defendants had failed to discharge their official duties, id. at 27; and under the U.S.
Constitution for substantive and procedural due process violations, id. at 27–28.
eis case has since been actively litigated. Defendants moved to sever the first
named Plaintiff’s claims, but the Court, then Judge Forrest, denied this request. Doc. 35.
ee Court further ordered the parties to meet and confer about a pretrial schedule and to
appear for a conference on July 16, 2018. Id. at 6. In a letter dated July 13, 2018,
Plaintiffs requested discovery. Doc. 36. Defendants opposed this request, claiming that
discovery was unnecessary. Doc. 37. On July 16, 2018, the Court held a hearing and
requested further briefing on the issue, which the parties provided. Docs. 47, 51, 52. ee
parties were scheduled to appear for oral argument on the matter on September 13, 2019.
Doc. 59.
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On June 6, 2019, Defendants informed the Court that all but one of the petitions at
issue had been adjudicated, and that the remaining petition—which implicates two
plaintiffs—was still within reasonable processing time. Doc. 58. As a result, they
intended to move to dismiss the complaint pursuant to Federal Rules of Civil Procedure
12(b)(1) for mootness and 12(b)(6) for failure to state a claim upon which relief can be
granted. Id. Of the thirty-nine petitions that were adjudicated, thirty were approved, and
nine were denied. Id., Ex. 1.
In response, Plaintiffs do not dispute that the majority of their petitions have been
adjudicated, but rather request leave to amend their complaint. ee proposed Amended
Complaint1 brings claims on behalf of five Yemeni families challenging the nine petition
denials as arbitrary and capricious under the APA. Doc. 71, Ex. 1. Like its predecessor,
the amended complaint also seeks declaratory relief and brings constitutional claims for
violations of procedural and substantive due process.
Accordingly, before the Court are Defendants’ motion to dismiss the complaint
pursuant to Rules 12(b)(1) and 12(b)(6), and Plaintiffs’ cross-motion to amend pursuant
to Rule 15. For the following reasons, both motions are granted.
II.

LEGAL STANDARD
A. Rule 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) requires that an action be dismissed for

lack of subject matter jurisdiction when the district court lacks the statutory or
constitutional power to adjudicate the case. Fed. R. Civ. P. 12(b)(1). ee party asserting
subject matter jurisdiction carries the burden of establishing, by a preponderance of the
evidence, that jurisdiction exists. Morrison v. Nat’l Australia Bank Ltd., 547 F.3d 167,
170 (2d Cir. 2008) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)).
“On a Rule 12(b)(1) motion challenging the district court’s subject matter jurisdiction, the
1

eis is Plaintiffs’ Second Amended Complaint. ee First Amended Complaint, Doc. 6, was filed in
response to a filing deficiency in the original complaint, Doc. 1.

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court may resolve the disputed jurisdictional fact issues by referring to evidence outside
of the pleadings . . . .” Zappia Middle East Constr. Co. Ltd. v. Emirate of Abu Dhabi, 215
F.3d 247, 253 (2d Cir. 2000). When evaluating a motion to dismiss for lack of subject
matter jurisdiction, the court accepts all material factual allegations in the complaint as
true but does not draw inferences from the complaint favorable to the plaintiff. J.S. ex
rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004) (citing Shipping Fin. Servs.
Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998)).
B. Rule 12(b)(6)
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is facially plausible “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). ee plaintiff must allege
sufficient facts to show “more than a sheer possibility that a defendant has acted
unlawfully.” Id. (citing Twombly, 550 U.S. at 556). However, this “flexible ‘plausibility
standard’” is not a heightened pleading standard, In re Elevator Antitrust Litig., 502 F.3d
47, 50 n.3 (2d Cir. 2007) (internal quotation marks and citation omitted), and “a
complaint . . . does not need detailed factual allegations” to survive a motion to
dismiss, Twombly, 550 U.S. at 555.
ee question on a motion to dismiss “is not whether a plaintiff will ultimately
prevail but whether the claimant is entitled to offer evidence to support the claims.” Sikhs
for Justice v. Nath, 893 F. Supp. 2d 598, 615 (S.D.N.Y. 2012) (quoting Villager Pond,
Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995)). “[T]he purpose of Federal Rule
of Civil Procedure 12(b)(6) is to test, in a streamlined fashion, the formal sufficiency of
the plaintiff’s statement of a claim for relief without resolving a contest regarding its
substantive merits.” Halebian v. Berv, 644 F.3d 122, 130 (2d Cir. 2011) (internal
5

quotation marks and citations omitted). Accordingly, when ruling on a motion to dismiss
pursuant to Rule 12(b)(6), the Court accepts all factual allegations in the complaint as
true and draws all reasonable inferences in the plaintiff’s favor. Nielsen v. Rabin, 746
F.3d 58, 62 (2d Cir. 2014); see also Twombly, 550 U.S. at 556 (“[A] well-pleaded
complaint may proceed even if it strikes a savvy judge that actual proof of those facts is
improbable . . . .”).
C. Rule 15(d)
Rule 15 of the Federal Rules of Civil Procedure allows a party to amend its
complaint pursuant to the other party’s written consent or the court’s leave. Fed. R. Civ.
P. 15. When a party seeks to add claims based on events that occurred after the filing of
the complaint, the motion “is more properly classified as one for leave to serve a
supplemental pleading under Rule 15(d).” Cummings-Fowler v. Suffolk Cty. v. Cmty.
Coll., 282 F.R.D. 292, 296 (E.D.N.Y. 2012). Rule 15(d) states that “the court may, on just
terms, permit a party to serve a supplemental pleading setting out any transaction,
occurrence, or event that happened after the date of the pleading to be supplemented.” It
further provides that “[t]he court may permit supplementation even though the original
pleading is defective in stating a claim or defense.” Rule 15(d) “reflects a liberal policy
favoring a merit-based resolution of the entire controversy between the parties.”
Witkowich v. Gonzales, 541 F. Supp. 2d 572, 590 (S.D.N.Y. 2008) (internal quotation
marks and citations omitted).
“ee same standard . . . applies to both motions to amend [pursuant to Rule 15(a)]
and motions to supplement [pursuant to Rule 15(d)].” M.V.B. Collision, Inc. v. Allstate
Ins. Co., 728 F. Supp. 2d 205, 222 (E.D.N.Y. 2010) (citations omitted). Under section
15(a), a “court should freely give leave [to amend] when justice so requires.” Fed. R.
Civ. P. 15(a)(2). Motions to amend are ultimately within the discretion of the district
court judge, Foman v. Davis, 371 U.S. 178, 182 (1962), who may deny leave to amend
“for good reason, including futility, bad faith, undue delay, or undue prejudice to the
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opposing party,” Holmes v. Grubman, 568 F.3d 329, 334 (2d Cir. 2009) (internal
quotation marks and citation omitted). eis is a permissive standard, since there is a
“strong preference for resolving disputes on the merits.” See Williams v. Citigroup
Inc., 659 F.3d 208, 212–13 (2d Cir. 2011) (internal quotation marks and citation omitted).
III.

DISCUSSION
A. Motion to Dismiss
Defendants move to dismiss the current complaint on two grounds. First, they

argue that USCIS has completed the adjudication of all but one of the I-130 petitions in
this action and that, therefore, claims related to those petitions are now moot. As to the
remaining petition, which implicates two plaintiffs, they argue that the complaint should
be dismissed for failure to state a claim because its adjudication has not been
unreasonably delayed and because there are currently no immigrant visas available for
that visa, meaning that, to the extent any delay does exist, it is inconsequential.
“A case becomes moot when the issues presented are no longer live or the parties
lack a legally cognizable interest in the outcome.” Freedom Party of New York v. New
York State Bd. of Elections, 77 F.3d 660, 662 (2d Cir. 1996) (internal quotation marks and
citation omitted). If a claim has become moot prior to the entry of final judgment, the
district court generally should dismiss the claim for lack of jurisdiction. See,
e.g., Campbell v. Greisberger, 80 F.3d 703, 705–706 (2d Cir. 1996) (abrogated on other
grounds by Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005)).
Plaintiffs do not contest that thirty-nine of the forty petitions at issue in this action
have now been adjudicated, and that courts under similar circumstances have routinely
denied such claims as moot. See, e.g., Alharbi v. Miller, 368 F. Supp. 3d 527, 549–52
(E.D.N.Y. 2019); Shaibi v. Cissna, No. 18 Civ. 102 (LJV), 2019 WL 3945991, at *2–4
(W.D.N.Y. Aug. 20, 2019). Here, because the petitions have inarguably been
adjudicated—even if the result of that adjudication was not what Plaintiffs would have
preferred—an order directing USCIS to adjudicate the petitions, or even a declaration

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that such adjudication was not timely, would have little direct impact on Plaintiffs.
eerefore, these claims are moot and will be dismissed.
As for the remaining petition, Defendants argue that Plaintiffs have failed to state
a claim for relief because the petition is not outside of normal processing times.
Moreover, even if the petition were to be granted, there are no visas currently available,
and so any potential delay is inconsequential. Plaintiffs wholly fail to address any of
these arguments in opposition and have therefore waived them. See, e.g., Triodetic Inc. v.
Statue of Liberty IV, LLC, 582 F. App’x 39, 40 (2d Cir. 2014) (summary order)
(“[P]laintiff never raised these arguments in its opposition to defendants’ motion for
summary judgment. Accordingly, these arguments were waived.”). eerefore, the Court
will dismiss claims relating to this petition as well.
B. Motion to Amend
Rather than substantively oppose Defendants’ motion to dismiss, Plaintiffs move
to amend their complaint, proposing instead to challenge the nine petition denials as
arbitrary and capricious under the APA. Plaintiffs maintain that such an amendment is
appropriate because they “are still seeking the same general relief—review of unlawful
agency action in violation of the APA and Constitutional right.” Doc. 75 at 2.
Defendants, in turn, argue that they would be prejudiced by this amendment because it
purports to change the entire nature of the action. Doc. 74.
In determining whether parties would be prejudiced, courts consider whether the
amendment would: “(1) require the opponent to ‘expend significant additional resources
to conduct discovery and prepare for trial,’ (2) significantly prolong the resolution of the
action, or (3) ‘prevent the plaintiff from bringing a timely action in another jurisdiction.’”
Cummings-Fowler, 282 F.R.D. at 297 (E.D.N.Y. 20120) (quoting Monahan v. New York
City Dep’t of Corr., 214 F.3d 275, 284 (2d Cir. 2000)). Generally, “the adverse party’s
burden of undertaking discovery, standing alone, does not suffice to warrant denial of a
motion to amend a pleading.” United States v. Cont’l Ill. Nat’l Bank & Trust Co. of Chi.,
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889 F.2d 1248, 1255 (2d Cir. 1989). “Rather, we will be most hesitant to allow
amendment where doing so unfairly surprises the non-movant and impedes the fair
prosecution of the claim.” Monahan, 214 F.3d at 284. “ee party opposing the motion
bears the burden of establishing that an amendment would be prejudicial or futile.”
Cummings-Fowler, 282 F.3d at 296.
Defendants argue that they will be prejudiced by an amendment because they
have been “working diligently and in good faith to adjudicate Plaintiffs’ applications in an
effort to resolve this matter by completing adjudication of the I-130 petitions.” Doc. 74
at 4. As Defendants note, there has already been extensive motion practice in this case,
and, if the amendment is allowed, more is sure to follow. ee Court is sympathetic to
these arguments. However, there has not yet been any discovery in this case; moreover
“no trial date ha[s] been set by the court and no motion for summary judgment ha[s] yet
been filed by the defendants.” State Teachers Ret. Bd. v. Fluor Corp., 654 F.2d 843, 856
(2d Cir. 1981) (reversing denial of leave to amend). Nor has final judgment been entered
with respect to any of the claims. Cf. Nat’l Petrochemical Co. of Iran v. M/T Stolt Sheaf,
930 F.2d 240, 244–45 (2d Cir. 1991) (denying motion to amend where final judgment had
already been entered because “liberal amendment policy of Rule 15(a) [should not] . . . be
employed in a way that is contrary to the philosophy favoring finality of judgments and
the expeditious termination of litigation.” (internal quotation marks and citation
omitted)). Moreover, Plaintiffs have not unduly delayed in supplementing the complaint,
as they acted promptly after learning that the petitions had been denied. See Fluor Corp.,
654 F.2d at 856 (“Mere delay . . . absent a showing of bad faith or undue prejudice, does
not provide a basis for a district court to deny the right to amend.”).
Finally, Defendants cannot say that they have been unfairly surprised by the
proposed amendment. “Prejudice may result where the amendment seeks to add a new
claim, derived from a different set of facts of which the original complaint did not
provide adequate notice.” Chapman v. YMCA of Greater Buffalo, 161 F.R.D. 21, 24
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(W.D.N.Y. 1995) (citing Ansam Assocs., Inc. v. Cola Petroleum, Ltd., 760 F.2d 442, 446
(2d Cir. 1985)). eat is not the case here. Although Plaintiff’s initial complaint was
primarily brought as a mandamus action, it clearly challenges an alleged USCIS policy
that has resulted in “unconscionable and purposefu[l] delays and denials in adjudication
of immigration benefits of Yemeni nationals.” Doc. 6 at 4 (emphasis added). ee
proposed amendment does the same.2
ee Court will therefore grant Plaintiffs leave to amend their complaint.
IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS both Defendants’ Motion to

Dismiss and Plaintiffs’ Motion to Amend. Plaintiffs are directed to file the Amended
Complaint by May 19, 2020. ee Clerk of Court is respectfully directed to terminate the
motions, Docs. 66 and 71.
SO ORDERED.
Dated:

April 28, 2020
New York, New York
EDGARDO RAMOS, U.S.D.J.

2

Defendants appear to suggest that some of these new claims may well be futile and subject to dismissal,
Doc. 74 at 4 n.2, but they provide no legal grounds or arguments for why this may be the case, and so the
Court cannot evaluate this as a basis for refusing leave to amend.

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