Abdo v. Pompeo

• Decision Date: 22 May 2020
• Docket Number: Civil No.: BPG-17-1053
• Parties: ALAIN ABDO, et al., Plaintiffs, v. MIKE POMPEO, et al., Defendants.
• Court: U.S. District Court — District of Maryland

ALAIN ABDO, et al., Plaintiffs, v. MIKE POMPEO, et al., Defendants.

Civil No.: BPG-17-1053

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

May 22, 2020

MEMORANDUM OPINION

Plaintiffs Alain Abdo ("Abdo"), his wife, Maha Akiki ("Akiki"), and their two U.S. citizen minor children, J.A. and S.A., (collectively, "plaintiffs") bring this action against government defendants Mike Pompeo, United States Secretary of State; Tom Parillo, Chief, Waiver Review Division, U.S. Department of State; Kevin K. McAleenan, Acting Secretary of Homeland Security; Kenneth T. Cuccinelli, Acting Director, U.S. Citizenship and Immigration Services ("USCIS"); Kathy A. Baran, Director, California Service Center, USCIS; and William P. Barr, Attorney General of the United States (collectively, "defendants") alleging that defendants violated the Administrative Procedure Act ("APA") and plaintiffs' right to due process in the adjudication of Abdo's J-1 exceptional hardship waiver. (ECF No. 28 at 22-25). Plaintiffs additionally seek declaratory judgment that: (1) the State Department did not have authority to promulgate 22 C.F.R. § 41.62(c)(4); (2) 22 C.F.R. § 41.62(c)(4) and the Department of Homeland Security's ("DHS") conforming act, 8 C.F.R. § 212.7(c)(4), violate the APA; (3) Akiki is not subject to the two-year foreign residence requirement; (4) and that J.A. and S.A. have fundamental rights to life, family unity with their parents, and residence in the United States. (Id. at 25-26). Currently pending before the court are: (1) Defendants' Motion for Judgment on the Pleadings Under Federal Rule of Civil Procedure 12(c) ("Defendants' Motion for Judgment on the Pleadings") (ECF No. 45); (2) Plaintiffs' Motion to Convert Defendants' Motion For Judgment on the Pleadings Under Federal Rule Of Civil Procedure 12(c) into a Motion for Summary Judgment Under Federal Rule of Civil Procedure 56 ("Plaintiffs' Motion to Convert") or in the Alternative Plaintiffs' Cross Motion for Judgment on the Pleadings Under Federal Rule of Civil Procedure 12(c) ("Plaintiffs' Cross Motion for Judgment on the Pleadings") (ECF No. 48); (3) Defendants' Opposition to Plaintiffs' Cross Motion for Judgment on the Pleadings Under Federal Rule of Civil Procedure 12(c) and Reply in Support of Defendants' Motion for Judgment on the Pleadings Under Federal Rule of Civil Procedure 12(c) ("Defendants' Opposition") (ECF No. 57); (4) Plaintiffs' Reply in Support of Their Motion for Judgment on the Pleadings Under Federal Rule of Civil Procedure 12(c) ("Plaintiffs' Reply") (ECF No. 60); (5) Defendants' Opposition to Plaintiffs' Motion to Convert Defendants' Motion for Judgment on the Pleadings Under Federal Rule of Civil Procedure 12(c) into a Motion for Summary Judgment Under Federal Rule of Civil Procedure 56 ("Defendants' Opposition to Motion to Convert") (ECF No. 54); (6) Plaintiffs' Reply in Support of Motion to Convert Defendants' Motion for Judgment on the Pleadings into a Motion for Summary Judgment ("Plaintiffs' Reply to Motion to Convert") (ECF No. 56); (7) Plaintiffs' Motion for Leave to File Second Amended Complaint Under Federal Rule of Civil Procedure 15(a)(2) ("Motion for Leave") (ECF No. 49); (8) Defendants' Opposition to Plaintiffs' Motion for Leave to File Their Second Amended Complaint ("Opposition to Motion for Leave") (ECF No. 53); (9) Plaintiffs' Reply in Support of Motion for Leave to File Their Second Amended Complaint ("Reply toMotion for Leave") (ECF No. 55). The issues are fully briefed, and no hearing is necessary. Loc. R. 105.6. For the reasons stated below, Defendants' Motion for Judgment on the Pleadings (ECF No. 45) is granted, Plaintiffs' Cross Motion for Judgment on the Pleadings (ECF No. 48) is denied, Plaintiffs' Motion to Convert (ECF No. 48) is denied, and Plaintiffs' Motion for Leave (ECF No. 49) is denied.

I. BACKGROUND

Abdo, a native and citizen of Lebanon, was admitted to the United States on a J-1 nonimmigrant exchange visitor visa to undertake a residency program in general surgery. (ECF No. 28 ¶¶ 1, 27). Abdo's wife, Akiki was admitted to the United States two years after Abdo, under a J-2 nonimmigrant exchange visitor visa, as the spouse accompanying or following to join Abdo, the J-1 nonimmigrant exchange visitor visa holder. (Id. ¶¶ 24, 29). A condition of this visa is that the J-1 visa holder must return to and reside in his home country for two years before he is eligible to apply for an immigrant visa or lawful permanent residence in the United States. (Id. ¶¶ 20-24). Under DHS regulation 8 C.F.R. § 212.7(c)(4) and Department of State regulation 22 C.F.R. § 41.62(c)(4), if the J-1 beneficiary is subject to the two-year foreign residency requirement, the J-2 visa beneficiary is also subject to the two-year foreign residency requirement. (Id. ¶ 24).

Abdo requested a waiver of the two-year foreign residency requirement under 8 U.S.C.§ 1182(e), asserting that his U.S. citizen children would face exceptional hardship if required to return to Lebanon. (Id. ¶¶ 25, 46, 49). Abdo filed for this waiver and USCIS, a component of DHS, determined that Abdo's return to Lebanon would result in the requisite level of hardship to the children to qualify for a waiver of the two-year foreign residency requirement.(Id. ¶ 50). Abdo's waiver application was then reviewed by the State Department, which recommended that the waiver request be denied. (Id. ¶¶ 55, 63). As a result, USCIS issued a final determination denying Abdo's waiver request. (Id. ¶ 79). After the denial of Abdo's waiver, plaintiffs returned to Lebanon. (Id. ¶ 95). Shortly after plaintiffs' return to Lebanon, Abdo returned to the United States for a brief time to complete his board exams. (Id.) While Abdo was temporarily in the United States, a third U.S. citizen child of Abdo and Akiki died in an accident in Lebanon. (Id.)

The parties' pending cross motions for judgment on the pleadings pertain to plaintiffs' First Amended Complaint (ECF No. 28). In the court's earlier opinion on defendants' Motion to Dismiss (ECF No. 10), the court noted that plaintiffs made a broader argument in their reply than in their Complaint (ECF No. 1), alleging that the State Department lacked authority to promulgate 22 C.F.R. § 41.62(c)(4). (ECF No. 24 at 9-10). The court declined to consider the allegation at that time because it was not in the Complaint. (Id. at 10). After resolution of the Motion to Dismiss, the court approved a Stipulation that would permit plaintiffs to raise this broader argument in an Amended Complaint. (ECF No. 27). Plaintiffs then filed their First Amended Complaint.

Plaintiffs' First Amended Complaint consists of four counts. (ECF No. 28 at 22-26). In Count I, plaintiffs allege that the State Department did not engage in formal rulemaking for 22 C.F.R. § 41.62(c)(4) and USCIS did not engage in formal rulemaking for its conforming regulation, 8 C.F.R. § 212.7(c)(4). (Id. at 22-23). Plaintiffs allege that the State Department did not have the authority to promulgate 22 C.F.R. § 41.62(c)(4), and the DHS conforming regulation, 8 C.F.R. § 212.7(c)(4), was based on a regulation that the State Department did nothave authority to promulgate. (Id. at 23). In Counts II and III, plaintiffs allege due process violations. (Id. at 24-25). The court did not dismiss Counts II and III in defendants' earlier Motion to Dismiss because "[d]efendants never directly address[ed] whether there are due process rights to life or family unity, and, if so, whether [d]efendants violated them." (ECF No. 24 at 19). In Count IV, plaintiffs seek declaratory judgment that: (1) the State Department did not have authority to promulgate 22 C.F.R. § 41.62(c)(4); (2) 22 C.F.R. § 41.62(c)(4) and the DHS conforming act, 8 C.F.R. § 212.7(c)(4), violate the APA; (3) Akiki is not subject to the two-year foreign residence requirement; (4) and that J.A. and S.A. have fundamental rights to life, family unity with their parents, and residence in the United States. (ECF No. 28 at 25-26).

II. CROSS MOTIONS FOR JUDGMENT ON THE PLEADINGS

A. Standard of Review

"A court reviewing a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) applies the same standard applicable to motions made under Rule 12(b)(6)." Puffinberger v. Commercion, LLC, 2014 WL 120596, at *2 (D. Md. Jan. 10, 2014); see Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). The motion "should only be granted if, after accepting all well-pleaded allegations in the plaintiff's complaint as true and drawing all reasonable factual inferences from those facts in the plaintiff's favor, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief." Id. (quoting Edwards, 178 F.3d at 244).

In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the court accepts all well-pleaded allegations of the complaint as true and construes the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff. See Venkatraman v. REI Sys., Inc.,417 F.3d 418, 420 (4th Cir. 2005). A complaint need only state "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not 'show[n]'—'that the pleader is entitled to relief.'" Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).

Pursuant to Rule 12(d), a motion for judgment on the pleadings is converted into a motion for summary judgment if "matters outside the pleadings are presented to and not excluded by the court." Fed. R. Civ. P. 12(d). "Matters—such as...