Al Khader v. Blinken

Decision Date22 February 2021
Docket NumberCase No. 18-cv-1355
PartiesRAED AL KHADER and HANI HASAN AHMAD EL KHADER a/k/a AL KHADER, Plaintiffs, v. ANTONY BLINKEN, United States Secretary of State, et al., Defendants.
CourtU.S. District Court — Northern District of Illinois

Judge Robert M. Dow, Jr.


Plaintiffs Raed Al Khader ("Raed") and Hani Hasan Ahmed El Khader a/k/a Al Khader ("Hani") seek leave to file a second amended complaint for declaratory relief ("SAC") challenging the July 16, 2015 decision of the U.S. Consulate in Riyadh ("Consulate") denying Hani's immigrant visa application and finding him to be inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i) for a material misrepresentation. See [42]. Defendants have moved to dismiss the SAC. See [47]. For the reasons explained below, Plaintiffs' motion [42] and Defendants' motion [47] are both granted in part and denied in part. As explained below, Plaintiff is authorized to file a third amended complaint by March 23, 2021 limited to: (1) a claim that 22 C.F.R. § 42.43 required the Consulate to suspend action on Hani's petition and case and return the petition, with a report of the facts, for reconsideration by DHS; and (2) a request for relief in the form of an order requiring the Consulate to suspend action on Hani's petition and case and return the petition, with a report of the facts, for reconsideration by DHS. If Plaintiffs choose instead to stand on the current complaint, they should so inform the Court by the same date noted above and the Court will enter a final and appealable judgment under Federal Rule of Civil Procedure 58 and terminate the case in this Court.

I. Background

The facts and claims set forth in the SAC are, for the most part, the same ones alleged in the original complaint and proposed amended complaint, which the Court dismissed in 16-page and 21-page opinions, respectively, based on the doctrine of consular nonreviewability. See [32], [41]. Knowledge of those opinions is assumed here. Very briefly summarized, Raed, a U.S. citizen, filed a Form I-140 immigrant visa petition seeking a visa for Hani, his non-citizen brother. U.S. Citizenship and Immigration Services ("USCIS") (an office of the U.S. Department of Homeland Security ("DHS")) approved the petition. However, the Consulate, which must review the petition and decide whether to grant or deny a visa, denied Hani a visa on the basis that he was ineligible due to having allegedly engaged in marriage fraud years earlier, in a brief arranged marriage to Nadia Muna ("Muna"), which ended in divorce.

In 2018, Plaintiffs filed a complaint against the U.S. Secretary of State, the Department of State, the Consulate, the U.S. Secretary of Homeland Security, DHS, the U.S. Attorney General, and the U.S. Department of Justice ("Defendants"). The current iteration of Plaintiffs' complaint, the proposed SAC, contains five counts that are largely identical to the counts alleged in the earlier versions of the complaint. In Count One, for violation of Due Process, Plaintiffs alleges that Raed "is a United States citizen who has a protected liberty interest in having his brother Hani be admitted into the U.S. based on the approved Form I-130 immigrant visa petition he filed for his brother." [42-2] at 26. Defendants' determination that Hani is inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i) allegedly violates "Raed's liberty interest to make personal choices regarding family matters free from unjustifiable government interference in violation of [his] right tosubstantive due process" and "also violates ... Raed's interest in having his brother Hani's immigrant visa application adjudicated in a manner consistent with procedural due process." [42-2] at 28.

However, compared to earlier versions of the complaint, Count One contains one significant addition. In this iteration, Plaintiffs further allege that, pursuant to 22 C.F.R. § 42.43, once the Consulate determined that Hani was inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i), it was required to suspend action and return the petition, with a report of facts, for reconsideration by DHS. Plaintiffs further allege (as they did previously) that "the consular officer had no authority to violate this regulatory procedure as the refusal of Plaintiff Hani's visa was under the exclusive authority of DHS, not the Department of State." [42-2] at 31 (citing 6 U.S.C. § 236(b)(1) and (c)(1)-(2)). Rather than follow this procedure, the SAC alleges, "the consular officer denied Plaintiff Hani's immigrant visa on the basis of alleged marriage fraud, thereby circumventing the process under regulations that would have provided Plaintiffs an opportunity and right to present additional evidence to rebut the allegations, in addition to an opportunity and right to appeal a revocation." [42-2] at 31-32 (citing 8 C.F.R. § 205.2).

In Count Two of the SAC, titled "Denial of Immigrant Visa Not Facially Legitimate and Bona Fide," Plaintiffs allege that the Court "has jurisdiction to adjudicate this case, notwithstanding the so-called doctrine of consular non-reviewability, because Defendants' denial of Hani's immigrant visa application was not based on a facially legitimate and bona fide reason." [42-2] at 32. Count Two asserts that "Defendants' denial of Hani's immigrant visa application based on marriage fraud is inconsistent with the USCIS's approval of Form I-130 filed by Plaintiff Raed" and therefore "is not facially valid." Id. at 33. Court Two further alleges that the denial of Hani's immigrant visa application based on marriage fraud was "not made in good faith." Id. at34. This claim is based on allegations that legacy INS "acted unfairly in revoking" Hani's Form I-140 petition "four years after it had been approved" and refused to allow Hani to review evidence in his A-file in order to respond to the NOIR, as allegedly required by legacy INS's regulations. Id. at 35. Count Two also alleges that "USCIS continued to withhold relevant evidence" from Hani's A-file, which resulted in his filing a FOIA complaint with the U.S. District Court for the Northern District of Illinois in 2016. Id. at 35-36. According to the SAC, "[t]he records obtained in 2016 as a result of the most recent FOIA litigation that the legacy INS previously withheld from Hani corroborate that the legacy INS knew or should have known that he entered into a good faith marriage with Ms. Muna. Specifically, the records contain a report from an interview with Ms. Muna in 2001, where she admits that she and Hani began a relationship according to Arabic and Islamic custom and that it was her parents' wishes for her to marry Plantiff Hani." Id. at 36 (citing [2-5] at 42, exhibit MM). Count Two adds an allegation that the Consulate's alleged failure to follow 22 C.F.R. § 42.43 and return the petition to DHS for reconsideration constituted bad faith. [42-2] at 37. According to the SAC, Plaintiffs also have strong evidence that Hani is innocent of marriage fraud and the facts supporting the denial of Hani's application are in dispute.

In Count Three, for violation of the First Amendment's Free Exercise Clause, Plaintiffs allege that "Defendants' failure to adequately consider Plaintiff Hani's evidence that his marriage arrangement with Ms. Muna was common among Muslim and Arabic couples violated the free exercise clause of the First Amendment by discriminating on the basis of religion." [42-2] at 41. Count Four, for violation of the Equal Protection Clause of the Fifth Amendment, is based on the same factual allegation. See id. at 42.

In Count Five of the SAC, Plaintiffs allege that Defendants violated the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 702, 704, and 706. In particular, Plaintiffs assert that"Defendants' legal determination that Plaintiff Hani is inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i) based on alleged marriage fraud is inconsistent with 8 U.S.C. § 1154(c) and Plaintiff Raed's approved Form I-130 filed on behalf of Plaintiff Hani and constitutes arbitrary and capricious agency action in violation of 5 U.S.C. § 706(2)(A)." [42-2] at 43. Defendants allegedly violated § 706(2)(D) by determining that Hani was inadmissible "without providing Plaintiffs an opportunity to rebut the allegations in revocation proceedings." Id. Finally, Defendants allegedly violated § 706(2)(E) and (F) because their finding that Plaintiff is inadmissible "is unsupported by substantial evidence and the facts." Id. In their prayer for relief, Defendants ask the Court to declare that Defendants' determination that Plaintiff is inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i) has no facially legitimate and bona fide basis and violates the First Amendment, the Equal Protection Clause, and the APA. Plaintiffs further seek a declaration that "Hani is not inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i)" and an injunction preventing "Defendants from barring Plaintiff Hani's admission into the United States." [42-2] at 44.

II. Legal Standard

A motion for leave to file an amended complaint should "freely" be granted "where justice so requires." Fed. R. Civ. P. 15(a)(2). "This liberal policy of granting amendments is based in part on the belief that decisions on the merits should be made whenever possible, absent countervailing considerations." Olech v. Vill. of Willowbrook, 138 F. Supp. 2d 1036, 1040 (N.D. Ill. 2000) (citation omitted). Thus, leave to amend is freely given "'[i]n the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of the allowance of the amendment, [or] futility of amendment.'" BarryAviation, Inc. v. Land O'Lakes Mun. Airport Comm'n, 377 F.3d 682, 687 (7th Cir. 2004) (quoting Foman v. Davis, 371 U.S. 178 (1962)).

The Court "may refuse to entertain a proposed amendment on futility grounds when the new...

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