Almaklani v. Trump

• Decision Date: 13 March 2020
• Docket Number: 18 CV 398 (NGG) (CLP)
• Parties: Kassem ALMAKLANI, et al, Plaintiffs, v. Donald J. TRUMP, et al, Defendants.
• Court: U.S. District Court — Eastern District of New York

444 F.Supp.3d 425

Kassem ALMAKLANI, et al, Plaintiffs,

v.Donald J. TRUMP, et al, Defendants.

18 CV 398 (NGG) (CLP)

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

Signed March 13, 2020

Filed March 17, 2020

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

Farzin Franklin Amanat, Matthew Silverman, Sheldon A. Smith, United States Attorneys Office, Eastern District of New York, Brooklyn, NY, for Defendants.

MEMORANDUM AND ORDER

POLLAK, Chief United States Magistrate Judge:

On January 19, 2018, plaintiffs, Yemeni nationals and their American Citizen and Legal Permanent Resident family members, filed a petition for a writ of mandamus and a Complaint for declaratory and injunctive relief against Donald J. Trump, Stephen Miller, Jeffrey Sessions, Lee Cisna, Kristjen Nielsen, Donald Neufeld, and various unknown employees of the United States Citizenship and Immigration Services ("USCIS") (collectively, "defendants"), alleging that defendants have implemented discriminatory procedures, policies, and programs enacted to prevent Yemenis from immigrating to the United States.

Currently pending before this Court is plaintiffs' motion for discovery. For the reasons set forth below, the Court denies plaintiffs' motion.

FACTUAL BACKGROUND

In their Amended Petition, filed on June 6, 2018, plaintiffs allege that each of them filed a Form I-130, Petition for Alien Relative, on behalf of their family members and provided all the necessary documentation. (Am. Pet'n¹ ¶¶ 161-448). While the majority of plaintiffs filed their petitions between 2016 and 2017, others filed earlier, between 2012 and 2015, with several filed as early as 2005, 2006, 2007; the oldest one appears to have been pending since 1992. (Id.; see id. ¶ 180). Plaintiffs allege that despite providing all requested documentation and responding to all notices, their petitions have been unreasonably delayed and they are still awaiting a proper and complete adjudication. (Id. ¶¶ 161-448). They allege that defendants have engaged in a scheme to "stymy and prevent Yemeni Muslim immigration to the United States." (Id. )

Specifically, plaintiffs allege that the Immigration and Nationality Act ("INA") provides the process by which a U.S. citizen can petition for an immediate relative to immigrate to the United States. (Id. ¶ 449). Under the USCIS' Adjudicators Field Manual, Ch. 11.1(c) – Standard of Proof, the petitioner has the burden to make out a case of eligibility in support of an I-130 petition and that only where the primary evidence is unavailable should secondary evidence or an interview be required. (Id. ¶¶ 450-453). Plaintiffs allege that "[g]enerally" I-130 petitions are approved on receipt of a completed application, primary evidence, and the payment of the required fees, and requests for evidence or in-person interviews are not normally sought until after there has been an individualized review of the petition. (Id. ¶¶ 455-456).

According to plaintiffs, however, defendants have implemented higher standards of proof needed to demonstrate family relationship for individuals petitioning for Yemeni nationals. (Id. ¶ 460). Among other things, plaintiffs claim that defendants consider all Yemeni I-130 Petitions to be " ‘fraudulent until proven otherwise.’ " (Id. ¶ 461 (quoting U.S. DOS Cable 09SANAA1729)). Moreover, plaintiffs claim that Yemeni petitions are subject to a mandatory in-person interview even though USCIS discourages such interviews for non-Yemeni petitions, and service centers considering Yemeni petitions also issue Requests for Evidence more often than required under the normal I-130 adjudication process. (Id. ¶¶ 464-465). Plaintiffs allege that USCIS officers are directed to scrutinize the immigration records of both the petitioner and beneficiary and, if there are any discrepancies, to deny the petitions. (Id. ¶¶ 466-467).

In addition to these allegedly discriminatory practices, plaintiffs allege that USCIS officers ask the Yemeni petitioners to sign a sworn statement in which irrelevant information about other relatives is required in an effort to "create a database of Yemeni families," and to "harass, delay, and deny other Yemeni I-130 petitions." (Id. ¶ 471). Similar sworn statements are not required of non-Yemeni petitioners. (Id. ¶ 470). Other tactics alleged to be used to discourage and delay petitions include seeking duplicative Requests for Evidence, and conducting duplicative and unnecessary security and systems checks at local field offices even if they have already been conducted at USCIS service centers. (Id. ¶¶ 473-478).

Plaintiffs allege that defendants conspired to promulgate the unlawful and discriminatory scheme against Yemenis in violation of the Nondiscrimination Clause of the INA, the Due Process and Equal Protection Clause of the Fifth Amendment, the Establishment Clause of the First Amendment, and federal regulations. (Id. ¶¶ 479-480). Plaintiffs claim that in 2017, the number of approvals of I-130 petitions for Yemenis had fallen to their lowest level in more than a decade and have continued to fall since. (Id. ¶ 496).

In Count One, plaintiffs contend that they have exhausted all administrative remedies in an effort to have their petitions adjudicated, but to no avail, and they seek to mandamus defendants to properly adjudicate the plaintiffs' petitions in good faith. (Id. ¶¶ 512-520). In Count Two, plaintiffs seek injunctive relief under the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 555, 701 et seq., to compel the agency to issue decisions on plaintiffs' petitions. (Id. ¶¶ 521-530). Count Three seeks a declaratory judgment, pursuant to 28 U.S.C. § 2201, stating that defendants' unreasonable delay and failure to notify plaintiffs regarding their I-130 petitions violated the INA and other federal laws and regulations. (Id. ¶¶ 531-535). Counts Four and Five allege Fifth Amendment violations of substantive and procedural due process (id. ¶¶ 536-544); Count Six raises violations of the Equal Protection Clause of the Fifth Amendment (id. ¶¶ 545-552); and Count Seven alleges violations of the First Amendment Establishment Clause in that defendants' policies target Muslims. (Id. ¶¶ 553-559). Plaintiffs' final claim alleges a conspiracy to interfere with plaintiffs' civil rights pursuant to 42 U.S.C. § 1985(3). (Id. ¶¶ 560-577).

DISCUSSION

On June 28, 2019, defendants filed a motion for summary judgment, seeking to dismiss plaintiffs' claims for lack of jurisdiction and for failing to state a claim pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). (See ECF No. 66). On August 12, 2019, pursuant to a scheduling Order issued by the District Judge, the parties submitted a fully briefed set of papers addressing plaintiffs' May 24, 2019 motion seeking a Rule 16(b) conference with the Court, along with discovery. (Pls.' Mem.² ).

In their Memorandum of Law, plaintiffs detail some of the documents and information that they seek, claiming that the facts most dispositive of the overall Yemeni I-130 scheme are not contained within the individual plaintiffs' records. Thus, they seek the following types of documents: 1) training documents; 2) all documents related to formulation of the 2012 Yemeni I-130 Policy Memorandum; 3) unredacted 2012 USCIS and/or DHS Yemeni I-130 policies; 4) an unredacted version of USCIS Policy Memorandum 602-0064; 5) documents relating to the time periods for adjudicating Yemeni nationals' I-130 applications; 6) reports submitted to defendants under the Presidential Proclamation 9645, sections 4(a) and 5(a); and 7) the report submitted by former Secretary of Homeland Security, John F. Kelly, on July 9, 2017³ (the "Kelly Report"). (Pls.' Mem. at 4-5). Plaintiffs also seek "limited discovery" of the decision-making processes applied to non-Yemeni applicants to show the differences and the prejudice caused to Yemeni families. (Id. at 5-6). These requested documents include: 1) documents relating to I-130 family-based adjudication procedures and processing times from January 1, 2013 to the date of service of the responses; 2) documents showing the breakdown of processing times by country for the last two years; and 3) internal reports and statistics showing the comparative processing times for Yemeni nationals and non-Yemeni petitioners. (Id. at 6).

Defendants oppose the motion on the grounds that this is an action seeking review of a USCIS policy under the APA, 5 U.S.C. § 706(2), and that discovery is not permitted in APA challenges where the determination is based solely on the administrative record that was before the agency at the time of the promulgation of the challenged policy. (Defs.' Mem.⁴ ¶ 7). Defendants also oppose plaintiffs' "eleventh-hour" motion as an untimely and procedurally improper response to defendants' summary judgment motion, and contend that the categories of discovery sought are inappropriate and constitute a "time-wasting fishing expedition." (Id. ¶¶ 12, 15).

For the reasons set forth below, the Court denies plaintiffs' motion for discovery.

A. The Administrative Procedures Act

Under the APA, a "person suffering legal wrong because of agency action or adversely affected or aggrieved by agency action... is entitled to judicial review[.]" Sharkey v. Quarantillo, 541 F.3d 75, 83 (2d Cir. 2008) (quoting 5 U.S.C. § 702 ) (case citations omitted). Judicial review is limited to review of "final agency action for which there is no other adequate remedy in court." Natural Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006) (quoting 5 U.S.C. § 704 ); Ali v. Tillerson, No. 16 CV 3691, 2017 WL 7048809, at *2 (E.D.N.Y. Nov. 21, 2017). While the APA does not confer subject matter jurisdiction for purposes of filing suit in a federal district court, the Supreme Court has held that 28 U.S.C. § 1331 effectively confers jurisdiction over a suit that arises under a right of action...