Al-Saadoon v. Barr

973 F.3d 794

Orwa Ali AL-SAADOON; Farok Abdulmajid Hamod Petitioners - Appellants

v.William P. BARR, Attorney General of the United States of America; Lee Cissna, Director, United States Citizenship and Immigration Services; Leslie Tritten, Field Office Director, United States Citizenship and Immigration Services; Kirstjen Nielsen, Secretary of the United States Department of Homeland Security Defendants - Appellees

No. 19-1335

United States Court of Appeals, Eighth Circuit.

Submitted: May 14, 2020

Filed: August 28, 2020

Rehearing and Rehearing En Banc Denied November 4, 2020

Counsel who represented the appellant was Herbert A. Igbanugo, of Minneapolis, MN., Jason A. Nielson of Minneapolis, MN.

Counsel who represented the appellee was Sergio Sarkany, USDOJ, OIL of Washington, DC.

Before SMITH, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.

SMITH, Chief Judge.

This case is the next chapter in an almost 20-year pursuit of naturalization by Farok Abdulmajid Hamod and his wife Orwa Ali Al-Saadoon. In Al-Saadoon I , we affirmed the denial of Hamod's and Al-Saadoon's petitions for naturalization because Hamod engaged in unlawful employment, and, therefore, the couple never lawfully adjusted to permanent resident status. Al-Saadoon v. Lynch (Al-Saadoon I ), 816 F.3d 1012 (8th Cir. 2016). In an attempt to remedy their unlawful adjustment, Al-Saadoon and Hamod filed a Supplement A to Form I-485¹ with the United States Customs and Immigration Services (USCIS) to adjust their status to lawful permanent residents nunc pro tunc² to 2002. They based the filing on their child's American citizenship and filed new applications for naturalization. USCIS rejected Hamod's and Al-Saadoon's requests for nunc pro tunc adjustment to lawful permanent resident status. The couple filed suit in the district court,³ challenging USCIS's denial, the government moved to dismiss their petition, and the district court granted the motion. Hamod and Al-Saadoon appeal. We affirm.

I. Background

In 1999, Hamod and Al-Saadoon, natives of Iraq, entered this country on a religious-worker visa after Hamod accepted a position as a teacher at the Al-Amal School in Minnesota. Hamod's visa prohibited him from changing employers without prior authorization from the Immigration and Naturalization Service (INS). In August 2000, the Islamic Cultural Community Center (ICCC) filed a petition seeking authorization to permanently employ Hamod as an Imam, and INS granted the petition in December. In 2002, Hamod and Al-Saadoon adjusted to permanent resident status.

In 2007, Hamod and Al-Saadoon sought naturalization. On the naturalization application, Hamod revealed that he began working for the ICCC before the ICCC filed the petition for authorization to employ him. Therefore, USCIS denied Hamod's and Al-Saadoon's petitions for naturalization. USCIS concluded that they had not been lawfully admitted to permanent resident status because Hamod had engaged in unauthorized employment.

Hamod and Al-Saadoon then filed suit in the District of Minnesota, but the district court agreed with USCIS that neither Hamod nor Al-Saadoon was eligible for naturalization. Our court affirmed. See Al-Saadoon I , 816 F.3d at 1015. We explained that Hamod and Al-Saadoon had to be lawfully admitted to permanent resident status before they would be eligible for naturalization. Id. at 1014. And, because Hamod accepted unauthorized employment, which was the basis for their adjustment to permanent resident status, Hamod and Al-Saadoon never lawfully adjusted to permanent resident status. Id. at 1014–15.

While Al-Saadoon I was still pending, in November 2014 and March 2015, Hamod and Al-Saadoon filed additional applications with USCIS. In November 2014, the couple's child filed a Form I-130 for both Hamod and Al-Saadoon to establish the existence of a qualifying family relationship between a citizen and an individual seeking lawful permanent residency. Then, they both filed a Form I-485, seeking lawful permanent residency on the basis of their child's citizenship. But, the couple did not stop there. In March 2015, the two filed a Supplement A to Form I-485, requesting that their adjustment to lawful permanent resident status be considered effective (or nunc pro tunc ) August 21, 2002, the date of their previous adjustment to permanent resident status. Finally, Hamod and Al-Saadoon filed new naturalization applications.

In September 2016, USCIS denied Hamod's and Al-Saadoon's applications for naturalization because they were unlawfully admitted to permanent resident status. USCIS also denied the request for nunc pro tunc relief to cure their unlawful admission through the filing of Supplement A to Form I-485. Hamod and Al-Saadoon then filed their second suit in the District of Minnesota, seeking review of USCIS's decision to deny their applications for naturalization and their request to cure their unlawful admission. See Hamod v. Duke (Al-Saadoon II ), No. 16-cv-1191-JRT-TNL, 2017 WL 3668762 (D. Minn. Aug. 24, 2017). However, the district court determined that it lacked subject matter jurisdiction because Hamod and Al-Saadoon failed to exhaust administrative remedies available in their naturalization applications. Id. at *2.

Hamod and Al-Saadoon argued that the district court had jurisdiction to review USCIS's denial of their request for nunc pro tunc relief, but the district court rejected that argument, explaining:

The Court does not find a separately reviewable issue as to Plaintiffs' request to cure their unlawful admission over which the Court could have subject matter jurisdiction at this time. Supplement A to Form I-485, which Plaintiffs rely on, is meant to supplement Form I-485 applications to adjust status, and thus it does not appear that Supplement A is a stand-alone application for particular relief. Based on the current record, it appears that Plaintiffs were asking USCIS to supplement their prior applications for adjustment of status nunc pro tunc to cure Plaintiffs' unlawful admissions in order to grant their naturalization applications. Accordingly, USCIS's denial of Plaintiffs' nunc pro tunc request formed part of the denial of Plaintiffs' naturalization applications. Thus, USCIS's decision—that USCIS cannot cure Plaintiffs' unlawful adjustment via the nunc pro tunc request and therefore Plaintiffs are not eligible for naturalization—will be reviewed in Plaintiffs' appeal of the denial of their naturalization applications.

Id.

Hamod and Al-Saadoon then went before an immigration officer, but on March 21, 2018, USCIS rejected their request for adjustment to lawful permanent resident status nunc pro tunc August 2002 because the Immigration Nationality Act (INA) "does not authorize USCIS to grant nunc pro tunc relief to a person unlawfully adjusted to permanent resident status." Appellants' App. at 58. But, USCIS further explained that even if it did have the authority, "USCIS would deny [the] request in the exercise of discretion" based on the conclusion that Hamod gave false information to the Al-Saadoon I court and failed to disclose his unauthorized ICCC employment. Id. Further, USCIS stated that Al-Saadoon I served as res judicata with respect to the remaining naturalization claims.

On July 18, 2018, Hamod and Al-Saadoon filed this action, challenging the denial of their request for adjustment to lawful permanent resident status nunc pro tunc and the denial of their naturalization applications. In addition, Hamod and Al-Saadoon alleged that they were victims of the Controlled Application Review and Resolution Program (CARRP). The government then filed a motion to dismiss, arguing that the district court lacked jurisdiction to review USCIS's decision regarding nunc pro tunc relief and that any naturalization claims were subject to res judicata. In their reply, Hamod and Al-Saadoon alleged for the first time that USCIS violated the Religious Freedom Restoration Act of 1993 (RFRA) in denying their requests for relief.

First, the district court concluded that 8 U.S.C. § 1421(c), which authorizes judicial review of USCIS's denial of a naturalization application, did not provide the court subject matter jurisdiction over the nunc pro tunc relief claim. It explained that adjustment to lawful permanent resident status and naturalization are two distinct classifications. Additionally, the district court rejected Hamod and Al-Saadoon's contention that Al-Saadoon II required it to review USCIS's denial of adjustment to lawful permanent resident status nunc pro tunc , explaining that Al-Saadoon II involved the narrower issue of exhaustion of remedies. Further, the district court concluded that judicial review of the denial for relief on the adjustment to lawful permanent resident status under 8 U.S.C. § 1255(i) was barred by 8 U.S.C. § 1252(a)(2)(B)(i).

Because the district court found that it did not have jurisdiction to review the nunc pro tunc relief claim for adjustment to permanent resident status, it accordingly found that Al-Saadoon I precluded review of the remaining naturalization claims based on res judicata. The district court also considered Al-Saadoon and Hamod's CARRP claim. It concluded that Al-Saadoon and Hamod failed to plead sufficient facts to show that CARRP caused the denial of their relief. Finally, the district court considered Al-Saadoon and Hamod's allegation that USCIS violated the RFRA. The district court rejected the claim because (1) Al-Saadoon and Hamod failed to plead it in their petition, (2) they failed to state a plausible claim for relief, and (3) Al-Saadoon I precluded a RFRA claim. Thus, the district court granted the government's motion to dismiss. Al-Saadoon and Hamod appeal.

II. Discussion

Al-Saadoon and Hamod seek to use " 8 U.S.C. § 1255(i) to retroactively, or nunc pro tunc , waive any prior grounds of inadmissibility." Appellants' Br. at 13. Explained another way, they attempt to cure Hamod's unauthorized employment violation and retroactively adjust to...