Altowaiti v. Wolf

Decision Date12 July 2021
Docket Number18 Civ. 508 (ER)
PartiesJAMAL ALTOWAITI, AMANI TAHIR ALTOWAITI, M.A. (1) (a minor child), J.A. (1) (a minor child), J.A. (2) (a minor child), J.A. 3) (a minor child), AKRAM ALGOMAI, TAKWA ALGOMAI, M.A. (2) (a minor child), WEJDAN ASSAIDI, MAJED AL-SAIDI, FAISAL EL NAHAM, AIKAL EL NAHAM, ALI AL SORMI, and ABEER AL SORMI, Plaintiffs, v. CHAD WOLF, Acting Secretary of the Department of Homeland Security; KENNETH CUCCINELLI, Acting Director of Citizenship and Immigration Services; LEE BOWLES, Acting Director USCIS New York District; SUSAN QUINTANA, Director New York City Field Office, Defendants.
CourtU.S. District Court — Southern District of New York


Plaintiffs-five families of Yemeni descent, including Yemeni nationals and their U.S. citizen and lawful permanent resident family members-bring this suit alleging that their visa applications have been unlawfully denied. Doc. 79. They bring claims under the Administrative Procedure Act and the Declaratory Judgment Act, as well as substantive and procedural due process claims under the United States Constitution. Pending before the Court is Defendants' motion to dismiss the claims of some of the Plaintiffs for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), and to sever the claims of the remaining Plaintiffs pursuant to Federal Rule of Civil Procedure 21, Doc. 89, and Plaintiffs' counter-motion for leave to amend their complaint, Doc. 97.

For the following reasons, Defendants' motion is GRANTED, and Plaintiffs' counter-motion is DENIED.

A. Factual Background

The Court assumes familiarity with its prior opinion in this case. Altowaiti v. Cissna, No. 18 Civ. 508 (ER), 2020 WL 2036703 (S.D.N.Y Apr. 28, 2020).

The immediate relatives of U.S. citizens and lawful permanent residents may, under certain circumstances, immigrate to the United States. See Cuthill v. Blinken, 990 F.3d 272, 274 (2d Cir. 2021). 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); see also Cuthill, 990 F.3d at 274-75.

Plaintiffs include five petitioners-that is, U.S. citizens or lawful permanent residents who have filed one or more I-130 petitions-and their beneficiaries-that is, potentially eligible relatives of the petitioners on whose behalf their respective petitions have been filed. See Doc. 79 ¶¶ 48-62. For the rest of the opinion, the Court groups Plaintiffs according to their sponsoring petitioner, as follows:

• The “Altowaiti Family”: Jamal Altowaiti, a U.S. citizen petitioning for his wife and children;
• The “Algomai Family”: Akram Algomai, a U.S. citizen petitioning for his children;
• The “Assaidi Family”: Wejdan Assaidi, a U.S. citizen petitioning for her husband;
• The “El Naham Family”: Faisal El Naham, a U.S. citizen petitioning for his child; and
• The Al Sormi Family”: Ali Al Sormi, a legal permanent resident petitioning for his child.

Plaintiffs allege that U.S. Citizenship and Immigration Services (“USCIS”) improperly denied their I-130 petitions, filed between October 2014 and March 30, 2017. Id. ¶¶ 67-90. These denials were allegedly systemic and purposeful, targeted specifically towards Yemeni beneficiaries. Id. ¶ 2. Plaintiffs further allege that Defendants have engaged in intentional and discriminatory practices, procedures, policies, and programs enacted to frustrate and prevent Yemeni Muslim immigration to the Unites States, which has resulted in unconscionable and purposeful delays and denials in the adjudication of immigration benefits of Yemeni nationals. Id. ¶ 5. According to Plaintiffs, these policies and procedures include higher standards of proof to demonstrate family relationships, intentionally delaying interviews, issuing requests for more evidence and for DNA evidence, requesting immaterial evidence, and subjecting minor infants to enhanced security checks. Id. ¶¶ 91-96.

B. Procedural History

This suit was brought on January 19, 2018. Doc. 1. In the original complaint, Plaintiffs consisted of seventeen families of Yemeni descent who sought mandamus relief to compel Defendants to properly adjudicate in good faith forty individual I-130 petitions within thirty days and issue a final decision on the petitions. Doc. 6.[1] They also brought claims under the APA for failing to act on their petitions, under the Declaratory Judgment Act for a declaration that Defendants failed to discharge their official duties, and under the U.S. Constitution for substantive and procedural due process violations. Id.

On November 12, 2019, Defendants moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for mootness, and 12(b)(6) for failure to state a claim upon which relief can be granted. Doc. 66. In that motion, Defendants noted that thirty-nine of the forty petitions had already been adjudicated; of those adjudicated, thirty had been approved, and nine had been denied. Doc. 68. In response, Plaintiffs did not dispute that those petitions had been adjudicated; instead, they filed a counter-motion for leave to amend their complaint, bringing claims on behalf of the five Yemeni families at issue in the operative complaint for the denial of their petitions. Doc. 71. On April 28, 2020, the Court granted both motions. Doc. 77.

On May 5, 2020, Plaintiffs filed the operative complaint, asserting violations of the APA and procedural and substantive due process, and seeking declaratory relief. Doc. 79. On October 23, 2020, Defendants filed the instant motion to dismiss the El Naham and Algomai Families' claims, and to sever the Altowaiti, Assaidi, and Al Sormi Families' claims into three separate actions. Doc. 89. On November 19, 2020, Plaintiffs filed their opposition, raising the possibility of amending their complaint. Doc. 97.

A. Legal Standard

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). The party asserting subject matter jurisdiction carries the burden of establishing, by a preponderance of the evidence, that jurisdiction exists. Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (citing 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 court may resolve the disputed jurisdictional fact issues by referring to evidence outside of the pleadings.” ZappiaMiddle East Constr. Co. Ltd. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000); see also Altowaiti, 2020 WL 2036703, at *2. 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).

B. Analysis
1. El Naham Family

Defendants argue that the Court should dismiss the claims brought by the El Naham Family, as USCIS approved their I-130 petitions on February 7, 2020, rendering their claims moot. Plaintiffs concede that the El Naham Family's claims have been rendered moot. Doc. 97 at 2. The Court agrees. Accordingly, the El Naham Family's claims are dismissed for lack of subject matter jurisdiction.

2. Algomai Family

Defendants argue that the Algomai Family's claims should also be dismissed for lack of subject matter jurisdiction. Defendants note that agency action is generally not reviewable until that action becomes final, which the Second Circuit has emphasized is determined by “whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties.” Sharkey v. Quarantillo, 541 F.3d 75, 88 (2d Cir. 2008) (quotation omitted). Defendants emphasize, and Plaintiffs do not dispute, that the Algomai Family's petitions have been denied by UCSIS and that the Algomai Family sought further administrative review by appealing those decisions to the Board of Immigration of Appeals (“BIA”). Additionally, those denials state that USCIS's “decision will become final unless you appeal it by filing a completed Form EOIR-29, Notice of Appeal to the Board of Immigration Appeals from a Decision of a USCIS Officer.” Doc. 92-2 at 7. And as Defendants note, those appeals remain pending before the BIA. Defendants argue that, accordingly, the agency actions as to the Algomai Family are not final, and the Court therefore lacks subject matter jurisdiction over their claims.

Plaintiffs do not dispute that there has yet to be a final agency action regarding the Algomai family's petition; instead Plaintiffs argue that they should be afforded the opportunity to amend their complaint to challenge the alleged delay in resolving the BIA appeal-which has been pending since March 18, 2019-pursuant to 5 U.S.C. § 706(1) and 28 U.S.C. § 1361. In their reply, Defendants assert that Plaintiffs have therefore conceded that the Court lacks subject matter jurisdiction over the case and that, accordingly, the Rule 12(b)(1) motion should be granted as to the Algomai Family's claims. However, because...

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