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Al Himyari v. Cissna

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

July 31, 2019

Al Himyari, et al., Plaintiffs,
v.
Cissna, et al., Defendants.

          Stephanie Dawkins Davis U.S. Magistrate Judge.

          ORDER GRANTING DEFENDANTS' AMENDED MOTION TO DISMISS [42]

          Arthur J. Tarnow Senior United States District Judge.

         Plaintiffs, Yemeni nationals and their U.S. citizen and/or lawful permanent resident family members petitioning on their behalf, commenced this action seeking a writ of mandamus ordering U.S. Citizenship and Immigration Services (“USCIS”) to compel adjudication of their Form I-130 petitions on that grounds that adjudication has been unlawfully withheld and unreasonably delayed.

         Before the Court is Defendants' Amended Motion to Dismiss the Third Amended Complaint [42] filed on September 20, 2018. The Motion is fully briefed. On April 11, 2019, the Court held a hearing on the Motion. For the reasons explained below, the Court will GRANT Defendants' Motion to Dismiss [42].

         Factual Background

         Plaintiffs are Yemeni nationals and their U.S. citizen and/or lawful permanent resident family members petitioning on their behalf. Plaintiffs have filed Form I- 130s, Petitions for Alien Relative, with USCIS in accordance with the Immigration and Nationality Act (“INA”). These petitions provide a means for citizens and lawful permanent residents to help family members abroad legally immigrate to the United States. Plaintiff-Beneficiaries seek lawful admission to this country to escape the war in Yemen and to reunite with their families who live here.

         Form I-130 applications require that the petitioner provide documentary evidence which establishes his or her familial relationship with the beneficiary abroad. 8 C.F.R. § 204.1. This includes primary evidence, such as birth certificates and passports; and secondary evidence, such as affidavits, medical records, and religious documents where necessary. 8 C.F.R. § 204.2. As part of the adjudication process, USCIS may also request additional evidence and conduct in-person interviews.

         In processing I-130s, USCIS subjects petitions from Yemen to greater scrutiny than it does petitions from other countries. The policy for Yemeni I-130 petitions (“the Policy”) is set forth in Chapter 21 of USCIS's Adjudicator's Field Manual. USCIS Adjudicator's Field Manual, Chapt. 21.2 Factors Common to the Adjudication of all Relative Visa Petitions, Petitions on Behalf of Aliens from Yemen, available at https://www.uscis.gov/ilink/docView/AFM/ HTML/AFM/0-0-0-1/0-0-0-3481/0-0-0-3513.html#0-0-0-387.

         The Policy is expanded upon in a USCIS Policy Memorandum issued on May 25, 2012. USCIS Policy Memorandum, Supplemental Guidance for Adjudicating Family-Based Petitions Supported by Relationship Documents Actually or Purportedly Issued by a Civil Authority in Yemen; Revisions to the Adjudicator's Field Manual (AFM) Chapter 21 (2012).

         USCIS routinely approves I-130 petitions from other countries upon receipt of the application and primary evidence. In adjudicating Yemeni petitions, however, USCIS requires petitioners to submit secondary evidence (including DNA evidence) and participate in interrogative in-person interviews. This heightened scrutiny and security results in lengthy processing times for Yemeni petitions.

         Relevant Procedural History

         On January 22, 2018, Plaintiffs, through counsel, filed a Petition for a Writ of Mandamus seeking prompt, good faith adjudication of their pending I-130s under the Administrative Procedures Act (“APA”).

         On September 5, 2018, Plaintiffs filed a Third Amended Complaint [37]. Defendants filed a Motion to Dismiss [41] on September 18, 2018, and an Amended Motion to Dismiss [42] on September 20, 2018. Plaintiffs filed a Response [43] on October 9, 2018. Defendants filed a Reply [45] on October 23, 2018.

         On April 11, 2019, the Court held a hearing on the Motion at which it ordered the parties to file supplemental briefing and provide a status update on Plaintiffs' pending I-130s. On May 24, 2019, the parties filed supplemental briefs [58, 59].

         Status of I-130 Petitions

         Defendants have submitted documentation which establishes that USCIS has adjudicated most of the I-130 petitions in the Third Amended Complaint (“Complaint”). Of the sixty petitions referenced in the Complaint, a total of seven remain pending.

         Four of the seven were filed by Plaintiff-Petitioner Wail Hussein, a U.S. lawful permanent resident petitioning on behalf of his spouse and three children. The Hussein ...


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