Ahmed v. Cissna, 17 Civ. 4608 (KPF)

• Decision Date: 31 August 2018
• Docket Number: 17 Civ. 4608 (KPF)
• Citation: 327 F.Supp.3d 650
• Parties: Thani AHMED, Ali Yahya, Bashar Yahya, Suaad Yahya, Abu Mobarez, Hasna Mobarez, Tareq Aljahmi, Eman AlGahmi, Yahya Aljahmi, Jabra Naji, Basheer Al-Khadher, Julie Ali, Hussein Mohamen, Saleh Mohamed, Momenah Alsadi, Aidah Moflehi, Amira Al-Gaadi, Wassim Al-Gaadi, Eshrak Al-Gaadi, Intisar Moflehi, Mansour Al-Gaadi, Ansam Mohammed, Abdulqawi Mohammed, Khaled Mohammed, and Abdulcafi Mohammed, Plaintiffs, v. Lee Francis CISSNA, in his official capacity as Director, United States Citizenship and Immigration Services, Laurie O'Bryon, in her official capacity as Rome Office Field Director, United States Citizenship and Immigration Services, Joseph Langolis, in his official capacity as Europe, Middle East, and Africa District Director, United States Citizenship and Immigration Services, United States Citizenship and Immigration Services, United States Embassy in Djibouti, United States Embassy in Malaysia, and United States Department of State, Defendants.
• Court: U.S. District Court — Southern District of New York

327 F.Supp.3d 650

Thani AHMED, Ali Yahya, Bashar Yahya, Suaad Yahya, Abu Mobarez, Hasna Mobarez, Tareq Aljahmi, Eman AlGahmi, Yahya Aljahmi, Jabra Naji, Basheer Al-Khadher, Julie Ali, Hussein Mohamen, Saleh Mohamed, Momenah Alsadi, Aidah Moflehi, Amira Al-Gaadi, Wassim Al-Gaadi, Eshrak Al-Gaadi, Intisar Moflehi, Mansour Al-Gaadi, Ansam Mohammed, Abdulqawi Mohammed, Khaled Mohammed, and Abdulcafi Mohammed, Plaintiffs,

v.Lee Francis CISSNA, in his official capacity as Director, United States Citizenship and Immigration Services, Laurie O'Bryon, in her official capacity as Rome Office Field Director, United States Citizenship and Immigration Services, Joseph Langolis, in his official capacity as Europe, Middle East, and Africa District Director, United States Citizenship and Immigration Services, United States Citizenship and Immigration Services, United States Embassy in Djibouti, United States Embassy in Malaysia, and United States Department of State, Defendants.

17 Civ. 4608 (KPF)

United States District Court, S.D. New York.

Signed August 31, 2018

Abadir Jama Barre, Julie A. Goldberg, Goldberg & Associates, Bronx, NY, for Plaintiffs.

Brandon Matthew Waterman, Charles Salim Jacob, United States Attorney's Office, New York, NY, for Defendants.

OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge:

Plaintiffs mount various statutory and constitutional challenges to the filing and adjudication procedures for Form I-130 petitions, which permit United States citizens and lawful permanent residents to petition on behalf of immediate relatives wishing to immigrate to the United States.¹ They seek to file petitions on behalf of family members who are presently residing in Djibouti, but who fled Yemen to escape that country's civil war. Each beneficiary is a spouse, parent, or child of a United States citizen.

Plaintiffs allege that they attempted to file their petitions at the United States Embassy in Djibouti, but were denied permission. They contend that the consular officers' failure to accept their petitions contravenes existing statutes and agency regulations. What is more, Plaintiffs contend that the United States Citizenship and Immigration Services ("USCIS") has impermissibly failed to send personnel to the Embassy in Djibouti to adjudicate I-130 petitions. In consequence, Plaintiffs bring claims under the Declaratory Judgment Act, 28 U.S.C. § 2201 ; the Mandamus Act, 28 U.S.C. § 1361 ; the Administrative Procedure Act ("APA"), codified in part at 5 U.S.C. ch. 5; and the Fifth Amendment to the United States Constitution. They request, inter alia , that this Court (i) require USCIS to send personnel to the United States Embassies in Djibouti and Malaysia to adjudicate petitions filed on behalf of Yemeni beneficiaries, and (ii) mandate that Plaintiffs be permitted to file their petitions with the United States Embassy in Djibouti, rather than being required to file their petitions by mail to a domestic "lockbox."

Pending before the Court is Defendants' motion to dismiss Plaintiffs' First Amended Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. In resolving this motion, the Court in no way minimizes Plaintiffs' concerns about the I-130 petition process and the medical and emotional needs of Plaintiffs and their family members. However, for the reasons that follow, Plaintiffs' claims are beset with jurisdictional and pleading defects to which the Court cannot turn a blind eye. Accordingly, Defendants' motion to dismiss is granted in full.

BACKGROUND

A. Factual Background²

1. The Parties

Plaintiffs are seven families, each with one or more United States citizens seeking to file I-130 petitions on behalf of Yemeni family members — spouses, parents, or children — residing in Djibouti. They are: (i) Thani Ahmed, a United States citizen residing in Djibouti who seeks to file on behalf of her children, Ali Yahya, Bashar Yahya, and Suaad Yahya; (ii) Abu Mobarez, a United States citizen residing in New York who seeks to file on behalf of his son, Hasna Mobarez; (iii) Tareq Aljahmi, a United States citizen seeking to file on behalf of his wife, Eman AlGahmi, and child, Yahya Aljahmi; (iv) Jabra Naji, a United States citizen residing in Djibouti who seeks to file on behalf of her husband, Basheer Al-Khadher, and daughter, Julie Ali; (v) Hussein Mohamed and Saleh Mohamed, United States citizens residing in New York who seek to file on behalf of their mother and wife, respectively, Momenah Alsadi; (vi) Aidah Moflehi, a United States citizen seeking to file on behalf of her children, Amira Al-Gaadi, Wassim Al-Gaadi, and Eshrak Al-Gaadi; and (vii) Intisar Moflehi, a United States citizen seeking to file on behalf of her husband, Mansour Al-Gaadi, and her children, Ansam Mohammed, Abdulqawi Mohammed, Khaled Mohammed, and Abdulcafi Mohammed. (FAC ¶¶ 6-12).

Defendants are (i) USCIS, an agency within the United States Department of Homeland Security that administers immigration benefits and services and, as relevant here, adjudicates I-130 petitions for alien relatives; (ii) Lee Francis Cissna, Director of USCIS; (iii) Laurie O'Bryon, Director of the USCIS Rome Field Office, an office that has the discretionary authority to permit Plaintiffs to file I-130 petitions directly with the United States Embassy in Djibouti; (iv) Joseph Langolis, Director of the USCIS District for Europe, the Middle East, and Africa; (v) the United States Embassy in Djibouti; (vi) the United States Embassy in Malaysia; and (vii) the United States Department of State. (FAC ¶¶ 13-19).

2. The I-130 Filing Process

a. The Default Procedure

The Immigration and Nationality Act ("INA"), codified at 8 U.S.C. ch. 12, sets forth a process by which an immediate relative of a United States citizen may immigrate to the United States. See 8 U.S.C. §§ 1153(a), 1154(a)(1)(A)(i) ; 8 C.F.R. § 204.1(a)(1). Though the INA calls for I-130 petitions to be filed with the Attorney General, see 8 U.S.C. § 1154(a)(1)(A)(i), Congress transferred the authority to adjudicate I-130 petitions to the USCIS when it passed the Homeland Security Act of 2002, see Pub. L. No. 107-296, § 451(b), 116 Stat. 2135, 2196 (2002). An alien seeking to obtain an immigrant visa on the basis of a familial relationship must cause the relevant family member to file an I-130 petition on her behalf. See 8 C.F.R. §§ 1153(a), 1154(a)(1)(A)(i); 8 C.F.R. § 204.1(a).

The default procedure for filing an I-130 petition, which applies irrespective of whether the petitioner resides in the United States or abroad, is to mail the petition to a domestic "lockbox," either in Phoenix or Chicago. See https://www.uscis.gov/i-130-addresses (last visited Aug. 30, 2018) (USCIS website specifying filing locations, by state or country of residence, for I-130 petitions). Once the petition has been filed, USCIS assesses whether "the facts stated in the petition are true and [ ] the alien in behalf of whom the petition is made is an immediate relative[.]" See 8 U.S.C. § 1154(b). If the familial relationship is verified, "the INS will ‘approve’ the petition[.]" Drax v. Reno , 338 F.3d 98, 114 (2d Cir. 2003). "[T]he approval of Form I-130 results in the beneficiary of the petition being classified as an immediate relative for purposes of issuing a visa for admission to the United States; it does not grant a visa or permanent resident status." Bolvito v. Mukasey , 527 F.3d 428, 430 n.4 (5th Cir. 2008). Instead, the alien beneficiary, once approved by USCIS, must still apply for a visa with the State Department.

b. Special Procedures for Petitioners Residing Abroad

For a United States citizen living abroad who wishes to file an I-130 petition, the filing method hinges on whether USCIS maintains a field office in the petitioner's country of residence. See 9 Foreign Affairs Manual ("FAM") 504.2-3. If a USCIS field office exists, petitioners may file their I-130 petitions directly with the USCIS public counter at the local embassy or consulate. See id. 504.2-3(B). If not, petitioners must typically file the petitions by mail to the Chicago lockbox. In some instances, where petitioners demonstrate exceptional circumstances, they may be permitted to file their petitions directly with their local embassy or consulate, even where there is no USCIS public counter. See id. 504.2-4.

In the face of exceptional circumstances, USCIS may, in its discretion after receiving requests from consular officers or other State Department officials, permit petitioners to file I-130 petitions at the local embassies or consulates. The Department of State's Foreign Affairs Manual states, in relevant part:

If a consular section without a USCIS public counter presence encounters an exceptional circumstance case, then the Consular Chief, or another designated officer, must receive authorization from the regional USCIS Field Office Director (or his/her designee) prior to accepting and adjudicating the filing. Post should contact the appropriate USCIS field office by phone or e-mail, providing the specifics of the reason for the exception request. USCIS will have discretion to determine which cases can be processed using the exceptional circumstances procedures and which petitioners should be directed to file by mail with the USCIS lockbox in the United States.

9 FAM 504.2-4(B)(1)(b)(2). Examples of exceptional circumstances include: threats to personal safety, where the "petitioner or beneficiary is facing an imminent threat to personal safety"; medical emergencies requiring "immediate travel"; and "[c]ases close to aging out[, where the] beneficiary is within a few months of aging out of eligibility." Id. 504.2-4(B)(1)(b)(3).

USCIS considers various factors, including cost, in determining whether to permit consular officers to accept petitions filed directly at local embassies or consulates. In a Policy Memorandum dated May 14, 2012, USCIS explained that, "it is more cost-effective for USCIS to adjudicate all I-130s with certain limited...