Khachatryan v. Blinken

• Decision Date: 14 July 2021
• Docket Number: No. 18-56359,18-56359
• Parties: Aleksan KHACHATRYAN; Daniel Danuns, Plaintiffs-Appellants, v. Antony J. BLINKEN, in his official capacity as U.S. Secretary of State ; John J. Sullivan, in his official capacity as U.S. Ambassador to the Russian Federation; Merrick B. Garland, in his official capacity as Attorney General ; Alejandro Mayorkas, in his official capacity as Secretary of the Department of Homeland Security; U.S. Department of State; U.S. Department of Homeland Security; U.S. Citizenship and Immigration Services; Does, 1–10, Consular Officers, American Embassy Visa Section at Moscow, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

4 F.4th 841

Aleksan KHACHATRYAN; Daniel Danuns, Plaintiffs-Appellants,

v.Antony J. BLINKEN, in his official capacity as U.S. Secretary of State ; John J. Sullivan, in his official capacity as U.S. Ambassador to the Russian Federation; Merrick B. Garland, in his official capacity as Attorney General ; Alejandro Mayorkas, in his official capacity as Secretary of the Department of Homeland Security; U.S. Department of State; U.S. Department of Homeland Security; U.S. Citizenship and Immigration Services; Does, 1–10, Consular Officers, American Embassy Visa Section at Moscow, Defendants-Appellees.

No. 18-56359

United States Court of Appeals, Ninth Circuit.

Submitted April 14, 2020^* Pasadena, California

Filed July 14, 2021

H. Henry Ezzati, Ezzati Law P.C., Irvine, California, for Plaintiffs-Appellants.

Nicola T. Hanna, United States Attorney; David M. Harris, Chief, Civil Division; Daniel O. Blau, Assistant United States Attorney; United States Attorney's Office, Los Angeles, California; for Defendants-Appellees.

Before: Daniel P. Collins and Kenneth K. Lee, Circuit Judges, and Gregory A. Presnell,^** District Judge.

Dissent by Judge Presnell

COLLINS, Circuit Judge:

Plaintiffs-Appellants Aleksan Khachatryan and Daniel Danuns, respectively a Russian citizen and his U.S. citizen adult son, appeal the district court's dismissal of their civil complaint challenging the Government's decision to deny Khachatryan an immigrant visa. Because Khachatryan is an unadmitted and nonresident alien, he has no cause of action to challenge the visa denial, and his claims were properly dismissed. Danuns claims that his Fifth Amendment right to due process was violated by the denial of his father's visa because a consular officer allegedly denied that visa in bad faith. We agree that Danuns's complaint pleads sufficient facts with particularity to raise a plausible inference that Khachatryan's visa was denied in bad faith. Nevertheless, we conclude that the district court properly dismissed Danuns's claims because he does not have a liberty interest, protected by due process, in living in the United States with his unadmitted and nonresident alien father. We therefore affirm.

I

We begin by recounting Khachatryan's ultimately unsuccessful effort, over a period of more than 14 years, to obtain an immigrant visa to reside in the United States. We then briefly set forth the procedural history leading up to the district court's dismissal of the case at the pleading stage.

A

In reviewing the dismissal of Plaintiffs’ operative complaint for failure to state a claim, we take as true the well-pleaded allegations of that complaint, Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), and "we ‘consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice,’ " Akhtar v. Mesa , 698 F.3d 1202, 1212 (9th Cir. 2012) (citation omitted). Applying those standards, we take the following facts as true.¹

Khachatryan, a native of Armenia, married Karine Galustian in Armenia, in the former Soviet Union, in March 1990. The couple had three children, including Arman Khachatryan, who is now known as Daniel Danuns. At some point, Khachatryan became a citizen of the Russian Federation and moved from Armenia to Moscow. After Khachatryan's marriage to Galustian ended in divorce in Moscow in 1999, Galustian moved with the children to the United States.

Khachatryan later married Ripsime Akhverdian, a U.S. citizen, in Moscow in June 2001. That same month, Akhverdian filed with the U.S. Immigration and Naturalization Service ("INS"), at the U.S. Embassy in Moscow, a "petition for alien relative" (Form I-130) sponsoring Khachatryan for an immigrant visa.² Three months later, the INS "Officer-in-Charge" at the Embassy issued a "Notice of Intent to Deny," asserting that Khachatryan's decree of divorce from Galustian, which had been submitted with the Form I-130, was fraudulent. The notice requested additional documents and set a due date for Akhverdian to respond.

In January 2002, prior to that due date, Akhverdian formally withdrew the petition, explaining that she had not had sufficient time to obtain the requested documents. Nonetheless, the INS Officer-in-Charge at the Embassy thereafter sent a "Decision" denying Akhverdian's petition on January 18, 2002. Although the INS decision acknowledged the agency's receipt of the withdrawal notice, the decision expressly disregarded that withdrawal and proceeded to deny the petition on the ground that the divorce certificate was fraudulent and that there was evidence that Khachatryan had married Akhverdian "for the purpose of evading" immigration laws. Akhverdian's counsel objected, noting that the INS's actions in disregarding the withdrawal and deciding the petition were directly contrary to Matter of Cintron , 16 I. & N. Dec. 9 (B.I.A. 1976). See id . at 9 ("Just as any United States citizen or lawful permanent resident may file a visa petition in behalf of an alien, so may he [or she] withdraw the petition before a decision has been rendered. The action of the District Director in refusing to consider the petition withdrawn was erroneous."). On March 5, 2002, the Officer-in-Charge acknowledged the agency's error and affirmed that Akhverdian's petition was deemed "to be withdrawn" rather than denied.

In October 2002, Akhverdian filed a new Form I-130 on Khachatryan's behalf, but this time she did so at the INS office in Los Angeles. In August 2003, the INS's successor agency, USCIS, denied Akhverdian's renewed petition, based solely on its assertion that her previous visa petition had been denied on grounds of fraud on January 18, 2002. Given the INS's earlier acknowledgment that the January 2002 denial was invalid under Matter of Cintron and that the previous application had been withdrawn before decision, the stated ground for this denial was plainly erroneous. Nonetheless, USCIS reiterated its denial of the second petition on this ground on October 6, 2003.

Khachatryan and Akhverdian subsequently divorced in 2005. After the divorce, Khachatryan had repeated difficulties in attempting to obtain a tourist visa to visit his children in the United States. In trying to resolve that problem, Khachatryan and his attorneys made numerous administrative inquiries over several years in an effort to correct the administrative record. Those efforts bore fruit when, in January 2009, USCIS, on its own motion, formally reopened the denial of Akhverdian's 2002 petition. USCIS's reopening decision acknowledged that, in light of Matter of Cintron , a "petition that is withdrawn by a petitioner may not be denied," and that, as a result, USCIS's denials of Akhverdian's renewed petition in August 2003 and October 2003 had erred in relying on "a ‘previous decision,’ which was never made." But the USCIS reopening decision went further and also held that "the Service did not prove that the marriage" to Akhverdian "was entered into for the purpose of evading immigration laws" (emphasis added). USCIS's grant of sua sponte reopening wiped out the prior USCIS denials and thereby had the effect of allowing the renewed petition to be withdrawn. (In view of Khachatryan's intervening divorce from Akhverdian, there was at that point no basis on which to proceed with that renewed petition on the merits.)

Despite this development, Khachatryan continued to have difficulty obtaining a tourist visa, and his family reached out to their elected representatives for help. In October 2011, the U.S. Customs and Border Protection ("CBP") responded to an inquiry from then-U.S. Senator Barbara Boxer concerning the situation. The CBP's letter acknowledged that the "documentation" the Senator's office had provided "indicates that Mr. Khachatryan has been unable to obtain an immigrant visa due to inaccurate charges contained in U.S. Customs and Border Protection (CBP) records relating to fraud." The CBP stated that, while it could not disclose specific law-enforcement records, it could assure the Senator that "we have undertaken a review of our records, and any required changes or updates have been made." Two months later, however, the U.S. Embassy in Moscow sent a letter by email to U.S. Representative Howard Berman's office, stating that Khachatryan had been denied a tourist visa because he was presumptively an intending immigrant, and not a tourist, and because he had been denied an immigrant visa in 2003 based on his having presented a fraudulent divorce certificate in support of his application. The Embassy letter to Representative Berman made no reference to USCIS's reopening of the August 2003 and October 2003 denials of an immigrant visa for Khachatryan.

On March 26, 2012, Danuns, who was then a U.S. citizen, filed a new Form I-130 petition seeking to sponsor his father so that the latter could obtain an immigrant visa. Under the Immigration and Nationality Act ("INA"), a parent seeking an immigrant visa ordinarily may be sponsored by a U.S.-citizen child only if that child is "at least 21 years of age," 8 U.S.C. § 1151(b)(2)(A)(i) ; see also id . § 1154(a)(1)(A)(i), and Danuns was 22 years old on the day he filed the application. In its current form, the statute requires the sponsor to file a petition (the I-130 Form) with USCIS in order to "establish[ ] the sponsor-applicant relationship." Doe #1 v. Trump , 984 F.3d 848, 855 (9th Cir. 2020) ; see also 8 U.S.C. § 1154(a)(1)(A)(i).³ "After an investigation of the facts in each case," USCIS "shall ... approve the petition and forward one copy thereof to the Department of State," if USCIS "determines that the facts stated in the petition are true and that the alien in behalf of whom the petition is made" is a qualifying "immediate relative." 8 U.S.C. § 1154(b). However, "no petition shall be approved" if the alien previously "sought to be accorded" immediate relative status as a spouse of a U.S. citizen "by reason of a...