Almakalani v. McAleenan

• Decision Date: 16 March 2021
• Docket Number: 18-CV-398 (NGG) (CLP)
• Parties: Kassem ALMAKALANI, et al., Plaintiffs, v. Kevin MCALEENAN, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

527 F.Supp.3d 205

Kassem ALMAKALANI, et al., Plaintiffs,

v.Kevin MCALEENAN, et al., Defendants.

18-CV-398 (NGG) (CLP)

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

Signed March 16, 2021

Julie A. Goldberg, Pro Hac Vice, Goldberg & Associates, Bronx, NY, Mehgan Anne Gallagher, Goldberg & Associates, New York, NY, for Plaintiffs.

Farzin Franklin Amanat, DiCello Levitt Gutzler LLC, New York, NY, Alex Scott Weinberg, James R. Cho, Matthew Silverman, Sheldon A. Smith, United States Attorney's Office, Brooklyn, NY, for Defendants Eastern District of New York U.S. Attorney's Office, U.S Attorney General.

Farzin Franklin Amanat, DiCello Levitt Gutzler LLC, New York, NY, Alex Scott Weinberg, James R. Cho, United States Attorneys Office, Brooklyn, NY, for Defendants Stephen Miller, Donald Neufeld, William P. Barr, Kevin M. McAleenan, Kenneth T. Cuccinelli.

Farzin Franklin Amanat, DiCello Levitt Gutzler LLC, New York, NY, Alex Scott Weinberg, James R. Cho, Sheldon A. Smith, United States Attorneys Office, Brooklyn, NY, for Defendant Unknown Named USCIS Employees.

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiffs are 47 citizens and legal permanent residents ("LPRs") of the United States and 86 of their family members, who are citizens of Yemen seeking to lawfully immigrate to the United States. (Am. Compl. (Dkt. 31) ¶¶ 1, 13-153; Gov't Mem. in Supp. of Mot. for Summ. J. and Mot. to Dismiss ("Mem.") (Dkt. 66) at 1.) The U.S. citizen and LPR plaintiffs ("Plaintiff-Petitioners") have petitioned on behalf of the Yemeni plaintiffs to whom they are related ("Plaintiff-Beneficiaries") by filing Form I-130 Petitions for Alien Relatives with U.S. Citizenship and Immigration Services ("USCIS"). (Am. Compl. ¶¶ 1-2.) Plaintiffs allege that the adjudication of their petitions has been unduly and unreasonably delayed as a result of "intentional and discriminatory practices, procedures, policies, and programs enacted to stymy and prevent Yemeni Muslim immigration to the United States." (Id. ¶ 8.) They seek various remedies, including a writ of mandamus compelling the adjudication of their petitions; injunctive relief pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. ; declaratory relief under the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. ; damages and injunctive relief pursuant to the alleged violation of their constitutional rights under the First Amendment and Fifth Amendment; and damages and injunctive relief pursuant to 42 U.S.C. § 1985, which prohibits conspiracies to interfere with civil rights. (Id. ¶¶ 512-77.)

Pending before the court is Defendants’ motion for summary judgment on Plaintiffs’ APA claims and for dismissal of Plaintiffs’ remaining claims for lack of subject matter jurisdiction and failure to state a claim. (See Mem.; Pls.’ Resp. in Opp. to Mot. for Summ. J. and Mot. to Dismiss ("Opp.") (Dkt. 67); Gov't Reply Mem. ("Reply") (Dkt. 68).) Also pending is Plaintiffs’ appeal of Chief Magistrate Judge Cheryl L. Pollak's March 17, 2020 order denying Plaintiffs’ motion for additional discovery and November 24, 2020 order denying Plaintiffs’ motion for reconsideration of the March 17, 2020 order. (See Pls.’ Appeal of Magistrate Judge Decision ("Appeal Mem.") (Dkt. 86); Gov't Mem. in Opp. to Appeal ("Appeal Opp.") (Dkt. 87); Pls.’ Reply in Supp. of Appeal ("Appeal Reply") (Dkt. 88).)

For the reasons explained below, Defendants’ (Dkt. 66) Motion for Summary Judgment and Motion to Dismiss is GRANTED with prejudice, and Plaintiffs’ (Dkt. 86) Appeal of Judge Pollak's orders regarding discovery is DENIED as moot.

I. BACKGROUND

A. Factual Background

1. Form I-130 Petitions and Yemen Guidance

The Immigration and Nationality Act ("INA") grants the Department of Homeland Security the authority to adjudicate immigration petitions. (Am. Compl. ¶ 449; Mem. at 4.) Under the INA and its implementing regulations, a U.S. citizen or LPR may petition for an alien relative to be deemed eligible for an immigrant visa by filing a Form I-130 Petition for Alien Relative ("Form I-130 petition"). (Am. Compl. ¶ 450; Mem. at 4.) U.S. citizens may petition on behalf of their spouses, parents, children, and siblings, while LPRs may petition only on behalf of their spouses and unmarried children. (Mem. at 4-5.) The purpose of Form I-130 is to establish the existence of a qualifying relationship between the U.S. citizen or LPR petitioner and the alien beneficiary. (Id. at 4.) USCIS, which adjudicates Form I-130 petitions, will approve them if the petitioner's status as a U.S. citizen or LPR, the beneficiary's qualifying relationship to the petitioner, and (in the case of spousal petitions) the bona fides of the marriage are satisfactorily established. (Id. at 5-6.)

A Form I-130 petitioner bears the burden of establishing the beneficiary's eligibility by a preponderance of the evidence. (Id. at 5; Am. Compl. ¶ 451.) To the extent possible, Form I-130 petitions must be supported by primary evidence, such as official birth, death, adoption, and marriage certificates issued by the beneficiary's home government. (Am. Compl. ¶ 452; Mem. at 5.) See 8 C.F.R. §§ 204.1(f)(1), 204.2. The INA's implementing regulations provide that the unavailability of primary evidence creates a presumption of ineligibility. Id. § 103.2(b)(2)(i). Secondary evidence, which includes non-governmental records, affidavits, and scientific evidence, may be submitted to rebut the presumption of ineligibility if primary evidence is unavailable. (Mem. at 5; Am. Compl. ¶ 453.) In adjudicating Form I-130 petitions, USCIS has the discretion to determine what supporting evidence is credible and what weight to ascribe to it. 8 C.F.R. § 204.1(f)(1). If USCIS cannot approve a petition based on the evidence submitted, it may require petitioners and beneficiaries "to appear for an interview and/or biometric collection." Id. § 103.2(b)(9).

In September 2009, the State Department and its embassy in Sana'a, Yemen documented findings regarding the reliability of primary evidence submitted in connection with Form I-130 petitions on behalf of Yemeni beneficiaries in a confidential diplomatic cable. (Mem. at 11.) The State Department observed that in Yemen, official records are not created contemporaneously with life events such as birth, death, marriage, and divorce; rather, "court judgments" based on witness testimony are issued retrospectively to meet requests for such documentation. (Id. ) The State Department concluded that court judgments from Yemen are particularly susceptible to error or fraud for this reason, and it directed USCIS adjudicators to give Yemeni court judgments no more weight than affidavits—in other words, to treat them as secondary rather than primary evidence. (Id. at 11-13.) As a result, primary evidence is categorically unavailable for Form I-130 petitions on behalf of Yemeni beneficiaries, and therefore such beneficiaries are presumptively ineligible for immigration visas. See 8 C.F.R. § 103.2(b)(2)(i).

Beginning in 2008, even before the State Department diplomatic cable was issued, USCIS officials considered what additional information they should require of Yemeni Form I-130 applicants in order to overcome the presumption of ineligibility. (Mem. at 14-15.) On May 25, 2012, USCIS issued a policy memorandum entitled "Supplemental Guidance for Adjudicating Family-Based Petitions Supported by Relationship Documents Actually or Purportedly Issued by a Civil Authority in Yemen" (the "Yemen Guidance"). (Id. at 15.) The Yemen Guidance introduced revisions to relevant portions of USCIS's Adjudicator's Field Manual. (Certified Administrative Record ("AR") (Dkt. 37-1) at 001-09.) The Yemen Guidance explains that "USCIS is aware that civil documents purportedly or actually issued in Yemen to establish claimed familial relationships ... are generally based on information furnished by an interested party" and that, at the direction of the State Department, USCIS therefore "regards these documents as insufficient to establish claimed familial relationships under a preponderance of the evidence standard, without additional evidence to corroborate the relationship." (Id. at 001.) It goes on to state that "the use of all available methods to evaluate the bona fides of the claimed familial relationship(s) is reasonable and necessary." (Id. at 002.)

The Yemen Guidance sets forth procedures for requesting additional corroborating evidence to assist in the adjudication of Form I-130 petitions supported by Yemeni documents, including that USCIS must invite the voluntary submission of DNA evidence but may not make such evidence mandatory or treat a petitioner's decision not to submit DNA evidence as "derogatory." (Id. at 003.) USCIS may approve petitions on the basis of DNA evidence or, alternatively, on the basis of additional secondary evidence (such as school records, medical records, and religious records) and an interview. (Id. ) The Yemen Guidance provides that petitions on behalf of Yemeni beneficiaries may not be favorably adjudicated without either DNA test results or an interview of the petitioner. (Id. ) A petitioner who declines to submit DNA evidence and receives a Notice of Intent to Deny ("NOID") her petition must be given an additional opportunity to submit DNA evidence prior to final adjudication. (Id. at 003-04.)

Plaintiffs allege that the protocols outlined in the Yemen Guidance hold Form I-130 petitions on behalf of Yemeni beneficiaries to a higher standard of proof than petitions on behalf of non-Yemeni beneficiaries. (Am. Compl. ¶¶ 457, 460.) They further allege that the policies and procedures for adjudicating Yemeni Form I-130 petitions were "enacted to stymy and prevent Yemeni Muslim immigration to the United States of America" and discriminate against Yemeni petitioners and beneficiaries on the basis of their race, religion, and national origin. (Id. ¶¶ 458, 468.) They contend that these policies and practices are the...