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Hussein v. Beecroft

United States District Court, E.D. Michigan, Southern Division

July 25, 2018

ABDOLSALAM MOHAMED HUSSEIN and TAHANI HUSSEIN AHMED ABDULRAB, Plaintiffs,
v.
R. STEPHEN BEECROFT, AMBASSADOR, UNITED STATES EMBASSY - CAIRO, and UNITED STATES DEPARTMENT OF STATE, Defendants.

          OPINION AND ORDER GRANTING MOTION TO DISMISS, DENYING MOTION TO AMEND PETITION, AND DISMISSING CASE

          DAVID M. LAWSON UNITED STATES DISTRICT JUDGE.

         Plaintiff Abdolsalam Mohamed Hussein (a U.S. citizen) has been attempting to obtain authorization for his wife, Tahani Hussein Ahmed Abdulrab (a citizen of Yemen), to enter the United States. The couple has been married since 1993 and they have five children together. The government approved Hussein's I-130 petition (petition for admission of an alien relative) for his wife in 2012. But the plaintiffs have not been able to obtain approval of a visa to allow Abdulrab to enter the country. The plaintiff filed a petition in this Court for a writ of mandamus to compel certain officials of the State Department to adjudicate the visa application. The defendants - all government officials sued in their official capacities and the Department of State - responded with a motion to dismiss, asserting that the visa application was denied on two occasions, and the decision is insulated from judicial review under the doctrine of consular nonreviewability. The plaintiff then filed a motion to amend the petition, seeking to clarify certain facts and add parties. Because the State Department has twice denied the visa application for a legitimate reason, there is no basis to issue a writ of mandamus. The plaintiff's proposed amended petition would be futile. Therefore, the Court will deny the motion to amend the petition, grant the motion to dismiss, and dismiss the case.

         I.

         The petition alleges that plaintiff Abdolsalam Mohamed Hussein is a United States Citizen and the husband of plaintiff Tahani Hussein Ahmed Abdulrab, who is a citizen of Yemen. At the time the petition was filed, defendant R. Stephen Beecroft was the Ambassador of the United States Embassy in Cairo, Egypt. His oversight duties included the consular section, which processed and adjudicated visa applications. On July 27, 2012, Hussein filed an I-130 “Petition for Alien Relative” on behalf of his wife. Hussein maintained that they had been married since 1993. On June 6, 2013, the petition was approved by the United States Citizenship and Immigration Service (USCIS) division of the Department of Homeland Security (DHS) and forwarded to the National Visa Center (NVC), where it was assigned a case number. Ms. Abdulrab was interviewed at the Cairo Embassy in early 2016, and, after the interview, the petition was placed in “administrative processing” status. Counsel for the plaintiffs subsequently contacted the Embassy by email several times, to inquire about the status of the petition, but received no response.

         Ellen Eiseman, an “attorney advisor” in the Department of State's Visa Services Directorate, Bureau of Consular Affairs, attested that the petition was received by the Department of State's National Visa Center on June 27, 2013. Ms. Abdulrab appeared for an interview relating to the petition and her visa application at the U.S. Embassy in Cairo, Egypt on September 29, 2015. After the interview, the consular officer refused the visa application, citing Section 221(g) of the Immigration and Nationality Act, 8 U.S.C. 1201(g), which is a general provision that states: “No visa or other documentation shall be issued to an alien if (1) it appears to the consular officer, from statements in the application, or in the papers submitted therewith, that such alien is ineligible to receive a visa or such other documentation under section 1182 of this title, or any other provision of law, (2) the application fails to comply with the provisions of this chapter, or the regulations issued thereunder, or (3) the consular officer knows or has reason to believe that such alien is ineligible to receive a visa or such other documentation under section 1182 of this title, or any other provision of law.” 8 U.S.C. § 1201(g).

         Apparently, the consular officer had doubts about the validity of the 1993 marriage representation, stemming from his belief that the marriage document appeared to have been altered, and Hussein's representation in a 1996 passport application that he was not married. On April 19, 2016, the consular officer contacted plaintiff Hussein by telephone and recommended that Ms. Abdulrab submit DNA test results for herself, plaintiff Hussein, and their eldest son, who was born in 1994, as corroborating evidence that the 1993 marriage - upon which the I-130 petition was based - was genuine. That same day, the consular officer contacted Ms. Abdulrab by telephone and “noted that the applicant would come to the Embassy for [a] new refusal letter.” Mot. to Dismiss., Ex. A, Ellen Eiseman decl. ¶ 6 (Pg ID 61). On June 7, 2016, the consular officer noted in the case record that no further information had been received. The consular officer tried to contact the plaintiffs again by telephone on October 5, 2017, but the phone numbers provided for them were out of service; the consulate also sent an email to the address on record asking the petitioners to schedule an appointment at the Embassy on October 9 or 10.

         On October 7, 2017, the Embassy received an email from attorney Julie Goldberg, the plaintiffs' attorney, stating that Ms. Abdulrab had returned to Yemen, but that Ms. Goldberg would convey the information.

         In a later declaration, Eiseman attested that Ms. Abdulrab appeared again at the Embassy for an interview on November 9, 2017. According to Eiseman, the consular officer interviewed Ms. Abdulrab under oath, but Ms. Abdulrab did not submit any further information in support of her application. On November 13, 2017, the consular officer “determined that, based on information provided in the visa application, the applicant failed to establish that she and [the] petitioner are in a legal marriage.” Reply, Ex. C, Ellen Eiseman decl. ¶ 6 (Pg ID 94-95).

         On November 14, 2017, the consular officer drafted a memo to accompany the petition explaining the results, and the next day the I-130 petition was returned with the memo to the National Visa Center for reconsideration and possible revocation. The memo sent to USCIS to explain the return of the application presumably included the following information, which was recorded in case log entries made by the consular officer:

On March 4, 2016, the consular officer entered a case note that “since 1993 marriage document does appear altered, and [petitioner's] 1996 ppt [passport] application indicates he was not married in 1996, so [sic] the 1993 marriage is suspicious” and further reflects that the consular officer noted that “to resolve, recommend that Tahini do DNA testing with the oldest son Yassin Abdosolam Hussein [born in 1994], who lives with the father in the U.S.”

Eiseman decl. ¶ 5 (Pg ID 185). Some DNA results were delivered by the petitioners to the consular authority after the visa application was returned to USCIS, but those results were for a younger child born in 2011, not for the eldest child born in 1994.

         According to the recent declaration of a representative of USCIS, the petition presently is assigned to the agency's California Service Center (CSC) and is listed as “pending reopening and re-adjudication.” Gov't Resp. [25], Ex. B, Christine Sung decl. ¶¶ 1, 5 (Pg ID 190-91). Sung attested that the reason for the return stated in the consular memo was that “information was unavailable to USCIS at the time of the petition's approval which indicates that there is insufficient evidence to support a finding by a preponderance of the evidence that the marriage is valid for immigration purposes.” Id. ¶ 5. The CSC presently has 8, 000 pending petitions in “consular return” cases, meaning petitions that were returned by the consular officer for further review, and the center has 15 assigned Immigration Services Officers adjudicating I-130 petitions. Id. ¶¶ 3-4. Sung attested that “[c]onsular return cases are reopened and re-adjudicated when capacity and resources are available, ” and that a higher priority is given to other types of cases under Department of State policy. Id. ¶ 4.

         The plaintiffs filed their petition for a writ of mandamus on July 20, 2017. The petition pleads claims seeking issuance of a writ of mandamus (Count I) to compel adjudication of the petition, an order compelling administrative action based on arbitrary and capricious or unreasonable delay under the Administrative Procedures Act (APA) (Count II), and a non-substantive count seeking congruent declaratory relief (Count III). The petition also alleges in Counts IV and V that the defendants violated plaintiff Hussein's procedural and substantive rights under the Due Process Clause of the Fifth Amendment by denying his right to make personal decisions concerning his family relations (i.e., prohibiting him from realizing his desire to have his spouse reside in the U.S. with him). In their prayer for relief, the plaintiffs ask that the Court declare that the delayed adjudication of the petition was arbitrary and capricious and violated Hussein's Due Process rights, and compel the defendants to issue a decision on the petition within 30 days.

         The proposed amended petition would add additional facts that have developed since the original filing. It also would add as defendants the USCIS Director and the ...


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