Baaghil v. Miller

1 F.4th 427

Abdul Kader Ahmed BAAGHIL, Plaintiff, Khaled Abdo Ali Ahmed; Malekah Ali Al Wahasi; Akram Khaled Abdo Ali Ahmed; Mohamed Abdo Ali Ahmed, Plaintiffs-Appellants,

v.Stephen MILLER, et al., Defendants, Merrick B. Garland, Attorney General, Antony Blinken, Secretary of State, and Tracy Renaud, Acting Director of United States Citizenship and Immigration Services, in their official capacities; United States Customs and Border Protection, Defendants-Appellees.

No. 20-1802

United States Court of Appeals, Sixth Circuit.

Decided and Filed: June 14, 2021

ON BRIEF: Julie A. Goldberg, GOLDBERG & ASSOCIATES, Bronx, New York, for Appellants. Joshua S. Press, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.

Before: SUTTON, Chief Judge; DAUGHTREY and GRIFFIN, Circuit Judges.

SUTTON, Chief Judge.

Khaled Abdo Ali Ahmed, a lawful permanent resident, applied for visas for his wife and children. A United States consulate eventually denied the applications. Through his original complaint and his failed request to amend that complaint, Ahmed sought relief in federal district court, urging the court to reverse the consulate's decision on a variety of grounds. The court declined, and we affirm.

I.

A.

The Immigration and Nationality Act requires noncitizens to obtain visas before they enter the United States. 8 U.S.C. § 1181(a). The Act creates a special visa-application process for a spouse or child of a lawful permanent resident. See id. § 1153(a)(2)(A). To start the process, the lawful permanent resident must file a "Form I-130." 8 C.F.R. § 204.1(a)(1). Once filed, the United States Citizenship and Immigration Services determines the relative's eligibility for a visa. Id. ; see 8 U.S.C. § 1154(a)(1)(A)(i). If the agency approves the I-130 petition, the relative must visit a United States consulate for additional processing. Id. § 1201(a)(1). The consulate undertakes its own investigation, which includes interviewing the family member who requested the visa. Id. § 1202(h). The consular official must refrain from issuing the visa if the official "knows or has reason to believe" that the applicant does not qualify. Id. § 1201(g).

If, in the course of the visa inquiry, the consular official comes to believe that Immigration Services should not have initially approved the I-130 petition, the "consular officer shall ... return the petition ... [to Immigration Services] for reconsideration." 22 C.F.R. § 42.43(a). Upon return of the petition to Immigration Services, an immigration officer may, after providing notice, "revoke the approval of" the lawful permanent resident's I-130 petition. 8 C.F.R. § 205.2(a). That decision would end the effort to obtain visas for the permanent resident's family members, but it would not necessarily require the agency to revoke his status as a lawful permanent resident.

B.

In 1994, Khaled Abdo Ali Ahmed and Malekah Ali Al Wahasi allegedly were married. Ahmed lives in the United States as a lawful permanent resident. Wahasi lives abroad as a Yemeni citizen. Their two sons, both Yemeni citizens, currently live with their mother in Malaysia.

In 2008, Ahmed filed an I-130 petition on behalf of his wife and sons to bring them to the United States. The government approved the initial petition in 2011, allowing Ahmed's family to move ahead with their applications to join him. Ahmed's wife and children visited the U.S. consulate in Yemen to apply for the visas. Over the next few years, U.S. consulate officers interviewed the family several times, first in Yemen and later in Malaysia, where the family moved in 2016.

Consular officials grew suspicious that the family members were not who they said they were. They found a different name for Ahmed on file, noting that he went by "Hameedi" at some point. Apprehensive officials requested additional proof of identification. While the family gathered additional evidence, the consulate placed the applications into "administrative processing." R.55-2 at 2–4.

In 2017, President Trump issued Presidential Proclamation 9645. See 82 Fed. Reg. 45161. The executive order made it more difficult for Yemeni nationals to receive visas to enter the United States.

Soon after, Ahmed and his family joined a lawsuit, spearheaded by Abdul Kader Ahmed Baaghil, a U.S. citizen seeking to bring his family from Yemen to the United States, that challenged the validity of the Proclamation and the way in which the government handled their visas. In addition to challenging Proclamation 9645, they sought a writ of mandamus ordering the consulate to immediately resolve their visa applications. The government moved to dismiss the complaint.

Several developments altered the scope of the lawsuit. One was the U.S. Supreme Court's decision to uphold Proclamation 9645. See Trump v. Hawaii , ––– U.S. ––––, 138 S. Ct. 2392, 2415, 201 L.Ed.2d 775 (2018). In responding to the plaintiffs’ claim that the Proclamation violated the Religion Clauses by banning certain groups on animus grounds, the Court reasoned that the Judicial Branch generally does not review the Executive's largely discretionary function to grant or deny visas under guidelines established by Congress. Id. at 2418–19. Even assuming that the Constitution restricted this executive branch policy and even assuming that rational basis review covered it, the Court upheld the Proclamation on the ground that legitimate national security concerns justified the visa policy. Id. at 2421.

The decision prompted a second development. Every plaintiff in today's case, except Ahmed and his family, either abandoned this lawsuit or was dismissed for improper joinder.

The third development came in November 2019, when the U.S. consulate in Malaysia denied the family's visa applications due to lingering concerns about their identities. At roughly the same time, the consulate sent Ahmed's I-130 petition to the U.S. Citizenship and Immigration Services office in Vermont for "review and possible revocation"—for further review, in other words, of whether it should continue to process the application or revoke it. R.55-2 at 2–3.

In the aftermath of these developments, Ahmed and his family moved to amend their complaint to challenge the visa denials and the potential revocation of Ahmed's I-130 petition. The court denied the request to amend as futile and dismissed the complaint.

II.

When the facts on the ground change, the nature of legal complaints in the courts sometimes changes. After the U.S. Supreme Court's decision to permit the President to issue Proclamation 9645, Hawaii , 138 S. Ct. at 2415, Ahmed and his family tacked in a new direction. Instead of challenging the validity of the Proclamation, they sought to amend their complaint to challenge the consulate's denial of their visa applications and the possible future revocation of Ahmed's status as a lawful permanent resident. Civil Rule 15(a) provides that leave to amend should be "freely give[n] when justice so requires." But a court may deny a motion to amend a complaint when the amendment would be futile. See Foman v. Davis , 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). If a court denies leave to amend based on futility grounds, as the district court did here, we review the decision with fresh eyes. See Inge v. Rock Fin. Corp. , 281 F.3d 613, 625 (6th Cir. 2002).

Visa Denials . Visa decisions, as a general matter, fall within the domain of the Legislative and Executive Branches—with Congress setting the terms for acceptance and denial and the President and the Department of State exercising considerable discretion in implementing those requirements through U.S. consulates around the world. See Kleindienst v. Mandel , 408 U.S. 753, 754–56, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972) ; see also United States ex rel. Knauff v. Shaughnessy , 338 U.S. 537, 542–43, 70 S.Ct. 309, 94 L.Ed. 317 (1950). Out of this allocation of power has sprung the doctrine of consular non-reviewability, a no-trespass rule under which the courts rarely second guess the decisions of consulates to deny or grant applications. As we have put the point, Congress has "authority to set the terms upon which a person without status in the United States may procure a visa and enter the country" as well as the "attendant prerogative" to refer "the power to welcome, exclude, or expel individuals without lawful status to the executive branch." Amiri v. Sec'y, Dep't of Homeland Sec. , 818 F. App'x 523, 526 (6th Cir. 2020). This allocation of authority to the First and Second Branches over visa applications rarely permits the Third Branch to police the decisions. Almario v. Att'y Gen. , 872 F.2d 147, 150 (6th Cir. 1989) ; see Yafai v. Pompeo , 912 F.3d 1018, 1020 (7th Cir. 2019) ; United States ex rel. London v. Phelps , 22 F.2d 288, 290 (2d Cir. 1927) ; United States ex rel. Ulrich v. Kellogg , 30 F.2d 984, 986 (App.D.C. Cir. 1929).

We say rarely because a modest exception remains. If a consulate's decision implicates the constitutional rights of United States citizens or lawful permanent residents, a court may review a challenge to the application. In such circumstances, a court may review the decision solely to determine whether the consulate provided a facially legitimate reason for its visa decision. See Matushkina v. Nielsen , 877 F.3d 289, 294 (7th Cir. 2017) ; Amiri , 818 F. App'x at 527. We do not "look behind" the decision or apply further scrutiny to it. Kleindienst , 408 U.S. at 770, 92 S.Ct. 2576. Even a "statutory citation" to the pertinent restriction, without more, suffices. See Hawaii , 138 S. Ct. at 2419 ; Sesay v. United States , 984 F.3d 312, 316 (4th Cir. 2021).

In applying the doctrine, we thus must distinguish between the claims filed by Ahmed's family and those filed by Ahmed. While each proposed claim remains futile, distinct explanations show why.

As to the claims of Ahmed's wife and children, the doctrine of consular non-reviewability applies in full force. We have no authority to second guess the...