Hanif v. Department of Homeland Security

• Decision Date: 16 January 2007
• Docket Number: No. 06-13641.,06-13641.
• Citation: 472 F.Supp.2d 914
• Parties: Kay Angela HANIF, Muhammad Hanif, Angel Nicole Hanif, Hamid Hussain, Aamir Hussain, Abrar Hussain Hanif, and Adnan Hussain Hanif, Plaintiffs, v. DEPARTMENT OF HOMELAND SECURITY, U.S. Citizenship and Immigration Services, and District Director Carol Jennifer, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

472 F.Supp.2d 914

Kay Angela HANIF, Muhammad Hanif, Angel Nicole Hanif, Hamid Hussain, Aamir Hussain, Abrar Hussain Hanif, and Adnan Hussain Hanif, Plaintiffs, v. DEPARTMENT OF HOMELAND SECURITY, U.S. Citizenship and Immigration Services, and District Director Carol Jennifer, Defendants.

No. 06-13641.

United States District Court, E.D. Michigan, Southern Division.

January 16, 2007.

Herman S. Dhade, Steven M. Garmo, Garmo Assoc., Farmington Hills, MI, for Plaintiffs.

Steven P. Croley, U.S. Attorney's Office, Detroit, MI, for Defendants.

OPINION AND ORDER GRANTING MOTION TO DISMISS AND DENYING MOTION TO STAY REMOVAL

LAWSON, District Judge.

The plaintiffs in this case have filed suit challenging the revocation of approval of a petition by a citizen-spouse (plaintiff Kay Angela Hanif) to classify plaintiff Muhammad Hanif as the spouse of a United States citizen and permit him to remain in this country. The suit also contests the denial of a later-filed petition. The defendants have responded with a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), alleging that the Court lacks jurisdiction to review the actions by the federal agencies. The plaintiffs have filed a motion to stay Muhammad Hanif's removal. The Court heard oral argument from the parties through their respective counsel in open court on January 8, 2007, and now finds that it has no jurisdiction to review the revocation of approval of the prior petition, and the latter petition is not ripe for review because an agency appeal is still pending at the administrative level. The complaint, therefore, will be dismissed and the motion to stay removal will be denied.

I.

Sometime before December 2002, Kay Angela Hanif, a United States Citizen, obtained approval of a Form 1-130, Petition for Alien Relative, designating Muhammad Hanif, a citizen of Pakistan, as her spouse, with the corresponding permission to remain in the United States. The approved 1-130 had allowed Mr. Hanif to be classified as the spouse of a United States citizen under 8 U.S.C. § 1151(b)(2)(A)(I) of the Immigration and Nationality Act (INA). This was the second such petition she had filed.

On December 2, 2002, the United States Department of Homeland Security, Bureau of Customs and Immigration Service (CIS), notified Ms. Hanif that it intended to revoke its prior approval of her Form I-130. CIS planned to revoke Ms. Hanif's I-130 on the grounds that an agency investigation in April 2002 suggested she had entered into a marital relationship with Mr. Hanif for the purposes of evading the immigration laws. CIS expressed two concerns. First, the agency was not satisfied with the documents Mr. Hanif had provided establishing that he was divorced in his country of origin. Second, the agency's investigation revealed that Mr. and Ms. Hanif did not live in the same apartment but rather in adjacent apartments, each with his or her respective children, and that they held many individual but few joint assets. In its notice of intended revocation in December 2002, CIS invited Ms. Hanif to submit information to rebut the grounds for the agency's intended decision to revoke her 1-130. Ms. Hanif replied by submitting materials on December 23, 2002. CIS was unpersuaded. On April 1, 2003, CIS therefore revoked its previous approval.

On July 11, 2003, Ms. Hanif submitted a new 1-130 petition (her third), again on behalf of Mr. Hanif. CIS again invited Ms. Hanif to submit rebuttal evidence establishing the bona fides of her marriage to Mr. Hanif, if she had any new evidence since the agency's April 2002 investigation. Ms. Hanif submitted additional evidence, which addressed both the records of Mr. Hanif's earlier divorce and the bona fides of Mr. Hanif's remarriage to her. Again CIS was unpersuaded. With respect to the records of Mr. Hanif's earlier divorce, the agency refused to accept the form of evidence Ms. Hanif submitted. With respect to the bona fides of Ms. Hanifs marriage to Mr. Hanif, CIS focused on a new apartment lease Ms. Hanif submitted in rebuttal that listed only herself and her daughter as the occupants of the apartment, suggesting again that neither the Hanifs nor their children from previous marriages lived together. In addition, two of Ms. Hanifs sisters — whom CIS contacted in May 2006 in response to affidavits Ms. Hanif submitted in rebuttal to CIS's intent to deny — did not know the names of any of Mr. Hanifs children. The agency therefore concluded that Ms. Hanif did not meet her burden to establish that Mr. Hanifs prior marriage was terminated, and his marriage to her was not entered into for purpose of gaining an immigration benefit. On May 30, 2006, CIS denied this new petition. The agency explained that it was denying her new 1-130 for the same reasons it revoked her previous 1-130.

CIS's decision denying Ms. Hanifs third 1-130 is now on appeal before the Bureau of Immigration Appeals (BIA). Ms. Hanif filed a notice of appeal to the BIA on June 23, 2006 and a brief in support of that appeal on July 28, 2006.

Meanwhile, Mr. Hanif is subject to a final order of removal. On March 10, 2004, Mr. Hanif filed a petition seeking a writ of habeas corpus in this Court. The habeas petition alleged that he was denied due process in removal proceedings resulting from the denial of his application for adjustment of status, which was in turn premised on the relative application Ms. Hanif filed on his behalf. On June 20, 2005, this Court transferred that petition to the Court of Appeals pursuant to thenrecent amendments to the INA. On July 5, 2006, the Sixth Circuit dismissed his appeal for lack of prosecution.

On August 15, 2006, Muhammad Hanif, his wife Kay Angela Hanif, and their children, Angel Nicole Hanif, Adnan Hussain Hanif, Abrar Hussain Hanif, Hamid Hussain, and Aamir Hussain, filed the present action challenging the revocation of the approval of Kay Angela's second I-130 petition and the denial of her third I-130 petition. The plaintiffs' complaint alleges that the denial of the petition is arbitrary and capricious in violation of the Administrative Procedures Act and violates the Fourteenth Amendment's Due Process Clause.

On August 31, 2006, the plaintiffs filed a motion to stay the removal of Muhammad Hanif, arguing that they are likely to prevail on the merits and irreparable harm will occur if the stay is not granted. The defendants have not responded to that motion. However, on October 13, 2006, the defendants filed a motion to dismiss arguing that this Court does not have jurisdiction to review the revocation of the second I-130 because the INA gives the agency complete discretion to make such decisions. The defendants contend that the Court has no jurisdiction to review the denial of the third I-130 petition because when Congress withdrew judicial review of discretionary decisions in 8 U.S.C. § 1252(a)(2)(B)(ii), it could not possibly have intended the Administrative Procedures Act to furnish an avenue for a rejected applicant to obtain judicial relief. The defendants argue in the alternative that the complaint does not state a claim upon which relief can be granted because the denial of the third 1-130 petition is currently on appeal to the BIA and therefore is not a final decision. The plaintiffs filed a response on October 31, 2006 disputing the government's arguments.

II.

The defendants argument that the Court does not have subject matter jurisdiction over the case invokes Federal Rule of Civil Procedure 12(b)(1). Lack of subject matter jurisdiction may be asserted at any time, either in a pleading or a motion. Fed.R.Civ.P. 12(b)(1); Television Reception Corp. v. Dunbar, 426 F.2d 174, 177 (6th Cir.1970). When subject matter jurisdiction is challenged, the plaintiff has the burden of proving jurisdiction in order to survive the motion. Michigan Southern R.R. Co. v. Branch & St. Joseph Counties Rail Users Ass'n., Inc., 287 F.3d 568, 573 (6th Cir.2002); see also Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir.1990).

The defendants' argument that the complaint does not state a claim upon which relief may be granted is based on Federal Rule of Civil Procedure 12(b)(6). In considering such a motion, the allegations in the complaint are taken as true and are viewed favorably to the non-moving party. Miller v. Currie, 50 F.3d 373, 377 (6th Cir.1995); Herrada v. City of Detroit, 275 F.3d 553, 556 (6th Cir.2001). To survive a motion to dismiss, a complaint must contain "either direct or indirect allegations respecting all material elements to sustain a recovery under some viable legal theory." In re DeLorean Motor Co., 991 F.2d 1236, 1240 (6th Cir.1993). The Court may consider only whether the allegations contained in the complaint state a claim for which relief can be granted. Roth Steel Prod. v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir.1983). The motion shall be granted only if "no set of facts in support of [the plaintiff's] claim [] would entitle [the plaintiff] to relief." Broyde v. Gotham Tower, Inc., 13 F.3d 994, 996 (6th Cir.1994).

The Immigration and Nationality Act states that "any citizen of the United States claiming that an alien is entitled to ... an immediate relative status under section 1151(b)(2)(A)(I) of this title [including spouses] may file a petition with the Attorney General for such classification." 8 U.S.C. § 1154(a)(1)(A)(i). The statutory language requires the Attorney General to grant the petition if he is satisfied that the facts are true:

After an investigation of the facts in each case ... the Attorney General shall, if he determines that the facts stated in the petition are true and that the alien in behalf of whom the petition is made is an immediate relative specified in section 1151(b) of this title ... approve the petition and forward one copy thereof to the Department of State. The Secretary of State shall then authorize the consular officer concerned to grant the preference...