Shoaibi v. Mayorkas

SALEH HASSEN ASKAR SHOAIBI and WAFA SALEH ABDULLAH, Plaintiffs, v. ALEJANDRO MAYORKAS, et al., Defendants.

No. 20-CV-7121-FPG

United States District Court, W.D. New York

October 21, 2021

DECISION AND ORDER

FRANK P. GERACI, JR. CHIEF JUDGE

INTRODUCTION

Plaintiffs Saleh Hassen Askar Shoaibi (“Shoaibi”) and his wife Wafa Saleh Abdullah (“Abdullah”) filed this action against Defendants-the Secretary of Homeland Security and various United States Citizenship and Immigration Services (“USCIS”) officials-for Administrative Procedures Act (“APA”) and constitutional violations arising out of their Form I-130 Immigrant Petition for Alien Relative (“I-130 Petition”). ECF No. 1.

Defendants filed a motion to dismiss, ECF No. 6, and in response Plaintiffs filed a motion to amend, ECF No. 10. For the reasons that follow, Defendants' motion to dismiss is DENIED AS MOOT and Plaintiffs' motion to amend is GRANTED IN PART and DENIED IN PART.

BACKGROUND

The Court draws the following facts from the Proposed Amended Complaint (the “Amended Complaint”), ECF No 10-2, and accepts them as true to evaluate whether amendment would be futile. Case v. Anderson, No. 16 CIV. 983 (NSR), 2017 WL 3701863, at *6 (S.D.N.Y. Aug. 25, 2017) (“The central inquiry for the Court when considering a motion to dismiss in tandem with a motion to amend is therefore, whether the proposed amended complaint can survive the motion to dismiss.”).

On March 1, 2019, Shoaibi-a United States citizen-submitted an I-130 Petition on behalf of his Yemeni wife, Abdullah. ECF No. 10-2 ¶ 36. Pursuant to the Immigration and Nationality Act (“INA”), a United States citizen like Shoaibi who wishes to bring a foreign national relative to the United States must first file a Form I-130 with USCIS. 8 U.S.C. § 1154; 8 C.F.R. § 204.1(a)(1). The I-130 Petition serves to establish the existence of a qualifying relationship between the United States citizen and the alien beneficiary, and approval of the I-130 is a prerequisite for the alien's admission to the United States. As part of the I-130 Petition process, USCIS typically interviews both the applicant/petitioner and beneficiary. If the I-130 Petition is approved, the alien beneficiary may then apply for a visa to enter the United States.

On December 2, 2020, Shoaibi appeared for an interview on his I-130 Petition with his counsel at the Buffalo Field Office of USCIS. ECF No. 10-2 ¶ 37. At some point during the interview, Shoaibi asked the officer for a copy of the sworn interview statement that would be produced at the end of the interview and summarize his testimony, but the officer refused to provide it.^[1] As a result, Shoaibi terminated his interview, and Abdullah's spousal interview was never scheduled. Id.

Plaintiffs commenced this lawsuit on January 24, 2020, claiming, among other things, that USCIS denied Plaintiffs' right to receive a copy of Shoaibi's sworn interview statement pursuant to 8 C.F.R. § 103.2(b)(7), and asking the Court to compel USCIS to provide such a copy. ECF No. 1.

On February 12, 2021, USCIS denied Shoaibi's I-130 Petition based on his failure to establish eligibility for approval. ECF No. 10-2 ¶ 42. The Decision explained that at the start of the interview, Shoaibi asked the officer to provide him with a copy of the sworn statement he would execute at the end of the interview, and the officer stated that Shoaibi would not be provided with a copy of the sworn statement at the conclusion of the interview. After consulting with his attorney, Shoaibi “chose to end the interview without providing the required testimony.” ECF No. 11-2 at 33. The interviewer explained the possible negative consequences of terminating the interview and that Shoaibi could request a copy of the statement through a Freedom of Information Act (“FOIA”) request. Shoaibi again confirmed his decision to terminate the interview without providing a statement. ECF No. 11-2 at 33-34.

Plaintiffs filed a motion to amend the complaint on May 24, 2021 seeking to add information regarding the denial of the I-130 Petition. ECF No. 10. The Amended Complaint raises six claims against Defendants: (1) a violation of the APA, 5 U.S.C. § 706, for unlawfully denying Plaintiffs' I-130 Petition while failing to comply with their obligation to provide a copy of his sworn statement under 8 C.F.R. § 103.2(b)(7); (2) a violation of the APA, 5 U.S.C. § 553, for relying USCIS Policy Memorandum PM-602-0064, in lieu of other agency rules and 8 C.F.R. § 103.2(b)(7), to deny his request for his sworn statement; (3) a violation of the Fifth Amendment's Due Process Clause^[2]; (4) a violation of the Equal Protection Clause; (5) a declaratory judgment that USCIS refused to follow its established rules; and (6) a writ of mandamus seeking-as best the Court can discern to compel Defendants to provide Shoaibi with a copy of the sworn statement and to decide Plaintiffs' I-130 Petition. ECF No. 10-2.

DISCUSSION

I. Legal Standard on Motion to Dismiss and Motion to Amend

Defendants move to dismiss the complaint pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Plaintiffs respond by moving to amend the complaint pursuant to Rule 15. In deciding a motion to dismiss, a court “must accept as true all of the factual allegations contained in the complaint, ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 572 (2007) (quoting another source), and “draw all reasonable inferences in Plaintiff's favor.” Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The application of this standard is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.

“Rule 15(a)(2) instructs that a court ‘should freely give leave [to amend] when justice so requires.'” Willis v. Rochester Police Dep't, No. 15-CV-6284-FPG, 2018 WL 4637378, at *2 (W.D.N.Y. Sept. 27, 2018) (quoting Grullon v. City of New Haven, 720 F.3d 133, 139-40 (2d Cir. 2013)). A court may, however, deny leave to amend where such amendment would be “futile.” Id. Amendment is futile if the proposed claim “could not withstand a motion to dismiss pursuant to Rule 12(b)(6).” Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002).

“When-as in this case-a motion to amend is filed in response to a pending motion to dismiss, ‘a court has a variety of ways in which' to proceed, ‘from denying the motion [to dismiss] as moot to considering the merits of the motion [to dismiss] in light of the [proposed] amended complaint.'” Willis, 2018 WL 4637378, at *2 (quoting Conforti v. Sunbelt Rentals, Inc., 201 F.Supp.3d 278, 291 (E.D.N.Y. 2016)). Here, the Court elects to deny the motion to dismiss as moot and address the motion to amend the complaint by considering Defendants' arguments in support of their motion to dismiss.

II. Abdullah Lacks Standing

Plaintiff Abdullah, as putative beneficiary of the I-130 Petition, does not have standing to bring statutory or constitutional claims regarding the I-130 Petition. “Article III of the Constitution limits the jurisdiction of federal courts to ‘Cases' and ‘Controversies.'” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 (2014) (citing U.S. Const., Art. III, § 2). “The doctrine of standing gives meaning to these constitutional limits by identifying those disputes which are appropriately resolved through the judicial process.” Id. (internal quotation marks and brackets omitted). “To establish Article III standing, a plaintiff must show (1) an injury in fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable decision.” Id. at 157-58 (internal quotation marks and brackets omitted). Abdullah has not and cannot show that she has suffered an injury in fact.

District courts in this Circuit have been clear that an unadmitted nonresident alien and beneficiary of an immigration petition-like Abdullah-lacks standing to challenge an immigration application filed on his or her behalf. Yan Won Liao v. Holder, 691 F.Supp.2d 344, 350-51 n.7 (E.D.N.Y. 2010) (explaining that courts have “reasoned that beneficiaries cannot claim an invasion of their legally protected interests sufficient to establish that they suffered an injury in fact because, as aliens, they lack any constitutionally protected right to enter the United States as a nonimmigrant”); Li v. Renaud, 709 F.Supp.2d 230, 236 n.3 (S.D.N.Y. 2010) (“A District Court action for judicial review of an administrative decision concerning a Form I-130 Petition may be brought only by the Petitioner . . . not by the Beneficiary.”). Similarly, Abdullah does not have a constitutionally-protected interest in entering the United States. Li v. Chertoff, No. 06 CIV 13679 LAP, 2007 WL 541974, at *2 (S.D.N.Y. Feb. 16, 2007) (acknowledging that “alien relatives do not have a constitutionally-protected interest in immigration status or a constitutional or statutory right to enter the United States”); Blacher v. Ridge, 436 F.Supp.2d 602, 606 n.3 (S.D.N.Y. 2006) (considering only the due process rights alleged by employer because the employer, as “the petitioner, [was] the only party with standing to seek review of the...