Raoof v. Sullivan

• Decision Date: 10 April 2018
• Docket Number: Case No. 1:17–cv–01156–TNM
• Citation: 315 F.Supp.3d 34
• Parties: Mustafa RAOOF, et al., Plaintiffs, v. John J. SULLIVAN, Acting Secretary of State, et al., Defendants.
• Court: U.S. District Court — District of Columbia

315 F.Supp.3d 34

Mustafa RAOOF, et al., Plaintiffs,

v.John J. SULLIVAN, Acting Secretary of State,¹ et al., Defendants.

Case No. 1:17–cv–01156–TNM

United States District Court, District of Columbia.

Signed April 10, 2018

Brian Christopher Schmitt, Hake and Schmitt, New Windsor, MD, for Plaintiffs.

Kenneth A. Adebonojo, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

TREVOR N. MCFADDEN, United States District Judge

Under the J–1 visa program, foreign doctors, accompanied by their spouse and minor children, can "temporarily" visit the United States for "graduate medical education or training." 8 U.S.C. § 1101(a)(15)(J). Exchange visitors in this category cannot apply for permanent residence unless they return to their last foreign residence for two years—barring a waiver of the requirement from the Attorney General, with the approval of the State Department and the Department of Homeland Security (DHS) (collectively, the Government). 18 U.S.C. § 1182(e). In this case, Dr. Mustafa Raoof, his wife Sidra Haye, and their American son challenge the denial of Dr. Raoof's waiver request, which requires them to return to Pakistan. The Government moves to dismiss, contending in large part that the decision is entrusted solely to agency discretion, and not reviewable by the judicial branch. For the reasons that follow, I will grant the motion to dismiss.

I. Background

Dr. Raoof and his wife, Ms. Haye, are citizens of Pakistan, and current residents of California. Compl. ¶¶ 1–2. Dr. Raoof entered the country in 2009 on a form of the J–1 visa, "as a nonimmigrant exchange visitor under 8 U.S.C. § 1101(a)(15)(J) to undertake a residency program in general surgery." Id. at ¶ 24. His visa was sponsored by the Educational Commission for Foreign Medical Graduates (ECFMG). Id. at ¶ 25. After Dr. Raoof wed Ms. Haye in April 2010, she entered the country in July 2010 on a J–2 visa, id. at ¶¶ 24, 27, "as a derivative" of Dr. Raoof's status. Id. at ¶ 21. Their son, "M.R.," was born in the United States in September 2015, making him an American citizen by birth. Id. at ¶ 28. Because Dr. Raoof came to the United States for graduate medical education, he is subject to the "two-year foreign residency requirement" under 18 U.S.C. § 1182(e), and cannot apply for permanent resident status, better known as a Green Card, "until he has either fulfilled the requirement by spending two years in his home country, or until he has obtained a waiver of the requirement." Id. at ¶ 18.

Dr. Raoof applied for a waiver of the two-year foreign residency requirement in 2016, arguing that his U.S. citizen son would be subjected to "exceptional hardship" if forced to return to Pakistan. Id. at ¶¶ 22, 36–41. According to the complaint, "Pakistan is one of the most violent, dangerous, and unstable countries in the world," with ongoing sectarian and political violence. Id. at ¶ 14. Both Dr. Raoof and his wife are from "the large southern port city of Karachi," which they allege "is in a state of near-anarchy, with constant gang wars and sectarian violence," creating an "exceptional risk" that their son would be "singled out for mistreatment and/or kidnapping for ransom" because of his American citizenship. Id. at ¶ 15. A forced return to Pakistan would also allegedly cause M.R. exceptional medical, psychological, educational, and sociocultural hardships. Id. at ¶ 16.

On December 1, 2016, United States Citizenship and Immigration Services (USCIS), a component of DHS, allegedly made the initial determination—via Defendant Kathy Baran, Director of the USCIS California Service Center—"that Dr. Raoof's qualifying relative would suffer exceptional hardships if a waiver was not granted." Id. at ¶ 44; see also Def.'s Mot. Dismiss 3 (Mot. Dismiss) (declining to deny the allegation). This finding was memorialized on a "Form I–613," which indicated that "prior to Ms. Baran's review ... an Adjudications Officer and a Supervisory Officer all made the same finding." Id. at ¶ 44. Dr. Raoof's waiver application was then sent to the State Department's Waiver Review Division (WRD). Id. at ¶ 50.²

Because USCIS had already determined that non-waiver would impose an exceptional hardship, WRD was required to "review the program, policy, and foreign relations aspects of the case, make a recommendation, and forward it to the appropriate office at DHS (in this case, the USCIS California Service Center)." 22 C.F.R. § 41.63. That same regulation states that "If it deems it appropriate, the Waiver Review Division may request the views of each of the exchange visitors' sponsors concerning the waiver application." Id. After receiving the application, WRD obtained "a Letter of Need," a document required by regulation for "admission to the United States in J–1 status for graduate medical education," likely written by ECFMG, Dr. Raoof's original sponsor. Compl. ¶ 52. The Plaintiffs allege "[o]n information and belief" that the WRD "did not seek or review Letters of Need" in cases like Dr. Raoof's prior to 2010. Id. at ¶ 54. WRD then "issued a Not Favorable recommendation" using the bottom of Form I–613, and sent the recommendation back to Director Baran at the USCIS California Service Center. Id. at ¶ 56. Although the form "contains a box that allows the State Department to explain" the reasons for its recommendation, WRD did not use this box. Id. at ¶¶ 55, 57.

Director Baran then denied the waiver application on the basis of the State Department's recommendation, explaining that:

In reaching this conclusion, the Waiver Review Division considered a range of facts relevant to assessing program, policy, and foreign relations interests in your case and determined that you would provide valuable knowledge, skills and expertise as a physician in the field of general surgical oncology. If you fail to fulfill your two-year foreign residency requirement, Pakistan would lose the opportunity to gain from your valuable experience in the United States.

Id. at ¶¶ 73–74. There is no administrative appeal from this decision. Id. at ¶ 75. Because Ms. Haye's J–2 status is derivative of Dr. Raoof's, agency regulations state that she is subject to the same two-year foreign residency requirement. 22 C.F.R. § 41.62(c)(4) ; 8 C.F.R. § 212.7(c)(4) ; Compl. ¶¶ 82, 85–85. The Plaintiffs argue that this requirement is "contrary to the plain language of 8 U.S.C. § 1182(e)," which they claim only applies to the original J–1 visa recipient. Compl. ¶¶ 81–82, 87.

This suit contains nine counts challenging the waiver denial on statutory interpretation grounds, and under the Administrative Procedure Act (APA), the Constitution's Due Process Clause, the International Covenant on Civil and Political Rights, the Mandamus Act, and the Declaratory Judgment Act. Compl. 21–30. The Government has moved to dismiss, citing lack of jurisdiction as to the APA abuse of discretion count, and failure to state a claim as to the remainder. Mot. Dismiss 1–2.

II. Legal Standards

Under Federal Rule of Civil Procedure 12(b)(1), a complaint may be dismissed for lack of subject matter jurisdiction, if the plaintiff fails to establish it. Arpaio v. Obama , 797 F.3d 11, 19 (D.C. Cir. 2015). "While the district court may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction ... the court must still accept all of the factual allegations in [the] complaint as true." Jerome Stevens Pharm., Inc. v. Food & Drug Admin. , 402 F.3d 1249, 1253 (D.C. Cir. 2005) (internal quotation marks and citations omitted).

"[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). However, "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). "A claim crosses from conceivable to plausible when it contains factual allegations that, if proved, would ‘allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ " Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015) (alteration omitted) (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ). In this inquiry, a court must "draw all reasonable inferences from those allegations in the plaintiff's favor," but does not "assume the truth of legal conclusions." Id.

III. Analysis

The Plaintiffs' "chief claim" is that "is that the State Department must have abused its discretion" in denying Dr. Raoof's waiver application. Compl. ¶ 16. Although they press this contention in many legal forms, and assail related aspects of the waiver determination system, each claim ultimately fails. The challenged decision, while important and complicated, is fundamentally discretionary. The power to make it has been allotted by statute to designated executive branch officials. On the facts presented, the judicial branch is not authorized to intervene or second guess that decision.

A. The APA Does Not Provide Jurisdiction to Review Discretionary Waiver Denials

In Count One, the Plaintiffs claim that the denial of Dr. Raoof's waiver application violates the APA. Id. at ¶ 106. They assert that the Government "failed to consider all the evidence in the record," and that "there is no evidence that the Defendants reviewed the program, policy, and foreign relations aspects of this case." Id. at ¶¶ 102–3. On this basis, the Plaintiffs argue that the denial was "contrary to [ ] statutory standards, the regulations, the legislative history, and the intent of Congress," "arbitrary and capricious," "and otherwise constitutes an abuse of discretion." Id. at ¶¶ 102, 106. However, the APA does not apply when "agency action is committed to agency discretion by law." 5...