Sarhan v. United States Citizens & Immigration Servs.

1

ROBERT SARHAN, Plaintiff, v. UNITED STATES CITIZENS & IMMIGRATION SERVICES, et al., Defendants.

No. 1:23CV657

United States District Court, M.D. North Carolina

December 22, 2023

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

L Patrick Auld United States Magistrate Judge

This case comes before the undersigned United States Magistrate Judge for a recommended ruling on Plaintiff's Motion for Fiancee to Come to North Carolina Immediately (Docket Entry 22 (“First Preliminary Relief Motion”)) and his Emergency Motion to Grant Visa for Shivani Bennet to Visit Her Family Here in North Carolina for the Christmas Holidays (Docket Entry 34 (“Second Preliminary Relief Motion”)). The Court should deny the First Preliminary Relief Motion and the Second Preliminary Relief Motion.

INTRODUCTION

Plaintiff instituted this action by filing a pro se Complaint (Docket Entry 1), against United States Citizenship and Immigration Services (“USCIS”), the Director of USCIS, the Secretary of the United States Department of Homeland Security (the Department housing USCIS), and two subordinate USCIS officials (see id. at 24, 6-7).^[1] The Complaint asserts these six claims for relief:

1) “Contrary to Constitutional Right and Without Observance of Procedure Required by Law[,] Arbitrary and Capricious[,] and Not in Accordance with Law” (id. at 13 (underscoring omitted); see also id. at 14 (alleging that USCIS's handling of visa request for Plaintiff's fiancee “violated [P]laintiff's right to due process of law under the United States Constitution” and that Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2) authorizes relief));

2) “Action, Findings and Conclusions in Excess of Statutory Authority” (id. at 15 (underscoring omitted); see also id. at 15-16 (challenging USCIS's application of 8 C.F.R. § 214.2(k) and invoking Section 706(2)(A) and (C) of APA));

3) “Agency Action Unlawfully Withheld and Unreasonably Delayed” (id. at 16 (underscoring omitted); see also id. at 16-17 (citing “8 U.S.C. § 1201 note 6” in relation to contention that “USCIS regularly fails to review fiancee visas within a reasonable period of time” and also contending APA “allows [c]ourts to compel agency action unlawfully withheld or unreasonably delayed”));^[2] 4) “Agency Action Unlawfully Denied the Fiancee Visa for Churning Fees” (id. at 17 (underscoring omitted); see also id. at 18 (“USCIS Churning can be defined as the practice of denying fiancee visas, therefore the petitioner must appeal and pay another $675.00, and the Appeals Office denies the visa and then you have to pay another $675.00 to file a I-290B, and during this time period you must wait an average of one year between filings.”), 19 (“Churning is illegal and unethical ....”));

5) “Federal Tort Claim [sic] Act” (id. at 19; see also Id. (“[The two subordinate USCIS officials] denied our fiancee visa for churning fees . . . [and] denied our fiancee visa without given [sic] a chance to respond, a violation of due process.”)); and

6) “Declaratory and Mandamus Relief” (id. at 20 (underscoring omitted); see also id. (“Plaintiff's claims qualify for mandamus relief because the statutory and Constitutional claims are clear, [ D]efendants' duties are not in doubt, and in the case of any remedies not available under the APA, no other adequate remedy is available.... Plaintiff's claims . . . also qualify for declaratory relief ....”)).

In connection with those six claims, the Complaint “petitions this Court for injunctive, declaratory and [m]andamus relief to: (a) compel [the two subordinate USCIS officials] to immediately issue [a] fiancee visa [to Plaintiff's fiancee;] (b) compel [the] State Department to immediately schedule a visa interview [with Plaintiff's fiancee; and] (c) compel [the] State Department to immediately issue a K-1 visa to [Plaintiff's fiancee].” (Id. at 3; see also id. at 21-22 (“request[ing] that this Court” (A) “issue a writ of mandamus compelling the USCIS to immediately issue the fiancee visa,” (B) “issue a writ of mandamus to the State Department to expedite a K-1 visa to [Plaintiff's] fiancee,” and (C) award damages against each of two subordinate USCIS officials of “$50,000 under the Federal Tort Claim [sic] Act,” as well as “$5,000.00 per month from the date of filing this lawsuit, until [Plaintiff's] fiancee is granted the visa and allowed to enter into the United States”).) According to the Complaint:

This Court has jurisdiction over this action under 28 U.S.C. § 1331 (federal question) and may review [D]efendants' actions or omissions under the [APA], the Mandamus Act, 28 U.S.C. § 1361, the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. (declaratory relief) and [t]he Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680 ....

(Docket Entry 1 at 3-4 (stray period omitted).)

Defendants have “move[d] the Court to dismiss [the] Complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).” (Docket Entry 30 at 1; see also Docket Entry 31 (supporting brief).) Plaintiff has responded in opposition (see Docket Entry 33) and Defendants have replied (see Docket Entry 35).

Before the parties made those filings, Plaintiff filed the First Preliminary Relief Motion, “requesting this Honorable Court to enforce the Writ of Mandamus and grant [Plaintiff's] fiancee, Shivani Bennet, the legal right to enter the United States immediately, so [they] can live under one roof, as husband and wife and start a family.” (Docket Entry 22 at 1.) More specifically, the First Preliminary Relief Motion asks the Court to “issue a writ of mandamus compelling the USCIS to immediately issue the fiancee visa” (id. at 7) and to “issue a writ of mandamus to the State Department to expedite a K-1 visa to [Plaintiff's] fiancee” (id.). The undersigned Magistrate Judge previously held a status hearing to address various matters in this case, including the First Preliminary Relief Motion, but deferred any recommended ruling thereon pending review of the motion to dismiss for lack of subject matter jurisdiction (the filing of which Defendants' counsel had forecasted during the hearing), along with any response by Plaintiff. (See Minute Entry dated Nov. 1, 2023.)

On December 18, 2023, Plaintiff filed the Second Preliminary Relief Motion, in which he “move[d] this Honorable Court to issue a sua sponte [o]rder, or grant an emergency hearing, to issue [his fiancee] a ‘visa or Judges [sic] Order' to get on a plane and travel from New Delhi[,] India to Raleigh[-]Durham[,] North Carolina, to be with her family for Christmas.” (Docket Entry 34 at 1 (italics omitted); see also id. at 2 (“pray[ing] this Honorable Court will grant a sua sponte [e]mergency [o]rder, or emergency hearing ordering [Plaintiff's fiancee] the right to board a plane from New Delhi to Raleigh[-]Durham[,] N.C. immediately”).)

DISCUSSION

“The Immigration and Nationality Act . . . defines [as one if its] classes of nonimmigrant aliens . . . ‘the fiancee or fiance of a citizen of the United States who seeks to enter the United States solely to conclude a valid marriage with the petitioner within ninety days after admission .'” Regis v. Holder, 769 F.3d 878, 879 (4th Cir. 2014) (internal ellipsis omitted) (quoting 8 U.S.C. § 1101(a)(15)(K)(i)). “Th[is so-called K-1] visa process begins when a U.S. citizen petitions the Department of Homeland Security to designate a foreign national as a nonimmigrant fiance or fiancee . . . .” Id. “USCIS, a component of the United States Department of Homeland Security, is charged with reviewing and approving petitions based on a number of statutory and regulatory factors.” Macena v. U.S. Citizenship & Immigr. Servs., Civ. No. 14-3464, 2015 WL 6738923, at *2 (D. Md. Nov. 2, 2015) (unpublished). “[An] approved petition is forwarded to the U.S. consulate in the fiancee's home country. The fiancee must then submit a visa application to the U.S. consulate in her home country, requesting a K-1 visa . . . .” Regis, 769 F.3d at 879 (internal citation omitted).

“[A United States Department of State] consular officer is charged with issuing the actual visa.” Macena, 2015 WL 6738923, at *3. “After receipt of an approved visa application, the consulate issues the K[-1] visa[] . . . .” Regis, 769 F.3d at 879. “The consular officer, however, may refuse to issue the visa if the consular officer knows or has reason to believe that the person seeking the visa is ineligible to receive it.” Macena, 2015 WL 6738923, at *3 (internal quotation marks omitted); see also Id. (“The person seeking the visa has the burden to prove eligibility, and, if such person fails to establish to the satisfaction of the consular officer that [s]he is eligible to receive a visa . . ., no visa shall be issued to such person.” (internal brackets, ellipsis, and quotation marks omitted)). Thus, “under the legal regime for the issuance of nonimmigrant visas to fiancees of U.S. citizens, USCIS . . . has no authority to issue [such visas].” Id. at *2.

As detailed in the Introduction, the First Preliminary Relief Motion and the Second Preliminary Relief Motion seek preliminary injunctive relief in the form of (A) directives from the Court requiring USCIS and/or the State Department to issue a K-1 visa to Plaintiff's fiancee, or (B) the Court's own authorization for her to enter the United States. “[T]he [United States Court of Appeals for the] Fourth Circuit has stated that district courts have the authority to issue preliminary injunctive relief in mandamus actions arising under [Section] 1361.” Center for Const. Rts. v. Lind, 954 F.Supp.2d 389, 396 (D. Md. 2013) (citing Starnes v. Schweiker, 715 F.2d 134 142 (4th Cir. 1983), vacated on other grounds sub nom., Heckler v. Starnes, ...