Malek v. United States Department of State

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

SORAYA MALEK, )

Plaintiff,

v. Case No. 23-cv-3261

UNITED STATES DEPARTMENT

OF STATE, et al., )

Defendants.

OPINION

COLLEEN R. LAWLESS, United States District Judge:

Before the Court is Defendants’! Motion to Dismiss for Lack of Jurisdiction and

Failure to State a Claim.

I. BACKGROUND

Soraya Malek is a United States Citizen who submitted an I-130 relative visa

petition for her son, Amirhossein Shokrani, who is a citizen and resident of Iran. (Doc. 1

at 3). On May 28, 2015, Malek filed the petition with the U.S. Citizenship and Immigration

Services (USCIS). (Id. at 4). On January 9, 2020, the USCIS approved the petition and sent

the case to the National Visa Center (NVC), a part of the U.S. Department of State for visa

processing. (Id.). The NVC completed its processing of the case and sent it to the U.S.

Embassy in Abu Dhabi, United Arab Emirates, for an interview. (Id.). Since that time, the

1 The Defendants are: the United States Department of State; the U.S. Embassy in Abu Dhabi, United Arab

Emirates; Anthony Blinken, the United States Secretary of State; and Erick Gaudiosi, the Chargé d’ Affaires

at the U.S. Embassy in Abu Dhabi, United Arab Emirates.

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Department of State has not conducted Shokrani’s visa interview. (Id.). Malek has

contacted the consulate multiple times, but those efforts have not been fruitful. (Id.).

Malek alleges that Defendants are intentionally delaying scheduling an interview

based on the Controlled Application Review and Resolution Program (CARRP). (Id. at 5).

The CARRP is an internal Department of Homeland Security (DHS) policy which

intentionally delays the resolution of visa applications based on potential security

concerns. (Id.). Malek alleges that the CARRP flags applicants as national security

concerns based on “innocuous activity and associations, and characteristics such as

national origin.” (Id. at 6). She states that “USCIS data reveals that between FY2008 and

FY2012, more than 19,000 people from twenty-one Muslim-majority countries or regions

were subjected to CARRP.” (Id.).

On August 24, 2023, Soraya Malek filed a two-count Complaint against

Defendants based on a delay in processing her son’s visa petition. (Id.). In Count I, Malek

alleges that the process used to process her son’s application violates the Administrative

Procedures Act (APA) based on the unreasonable delay. (Id. at 4-6). In Count II, Malek

alleges that Defendants violated her Fifth Amendment due process rights because of their

failure to provide a reasonable and just framework of adjudication for the petition. (Id. at

6-7).

On November 9, 2023, Defendants filed their Motion to Dismiss for Failure to State

a Claim and Lack of Jurisdiction. (Doc. 5). In the Motion, Defendants argue Malek has

failed to demonstrate that there is a mandatory, non-discretionary duty to schedule her

son for an interview, which they argue precludes Malek from proceeding under the APA.

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(Doc. 6 at 4-6). In support of their argument, Defendants attach a Declaration of Samuel

W. McDonald, the Attorney-Advisor for the U.S. Department of State. (Doc. 6, Ex. 1).

McDonald’s Declaration provides a timeline of Malek’s I-130 petition. (Id.). Defendants

also argue that Malek’s Complaint should be dismissed because the delay in scheduling

her son’s visa interview has not been unreasonable. (Id. at 7-11). Finally, Defendants

argue that the CARRP is not a Department of State policy, so it did not apply to her son.

(Id. at 11-13). On November 22, 2023, Malek filed her response, arguing Defendants do

have a clear, non-discretionary duty to schedule an interview on the visa application in a

timely manner, and that Defendants did not apply the correct 12(b)(6) standard. (Doc. 8).

II. DISCUSSION

A. Legal Standard

Defendants move to dismiss the Complaint under both Rule 12(b)(1) and 12(b)(6)

of the Federal Rules of Civil Procedure. A motion to dismiss under 12(b)(1) asserts that

the Court does not have jurisdiction over some or all of the subject matter in the

complaint. Fed. R. Civ. P. 12(b)(1). “Motions to dismiss under Rule 12(b)(1) are meant to

test the sufficiency of the complaint, not to decide the merits of the case,” and “[i]n the

context of a motion to dismiss for lack of subject matter jurisdiction, [the court] accept[s]

as true the well pleaded factual allegations, drawing all reasonable inferences in favor of

the plaintiff.” Center for Dermatology & Skin Cancer, Ltd. v. Burwell, 770 F.3d 586, 588 (7th

Cir. 2014). However, “a plaintiff faced with a 12(b)(1) motion to dismiss bears the burden

of establishing that the jurisdictional requirements have been met.” Burwell, 770 F.3d at

588-89. When considering a Rule 12(b)(1) motion where the complaint is formally

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sufficient but the defendant contends there is no subject-matter jurisdiction, a court can

look beyond the complaint and consider evidence submitted by the parties, without

converting the motion to one for summary judgment. Taylor v. McCamet, 875 F.3d 849,

853 (7th Cir. 2017), citing Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 444 (7th

Cir. 2009). “If the Court dismisses Plaintiff’s Complaint for lack of subject matter

jurisdiction, the accompanying Rule 12(b)(6) defenses become moot and need not be

addressed.” Barlow-Johnson v. Center for Youth and Family. Solutions, US. Dist. LEXIS

159183, 2023 WL 5826966, at *1 (C.D. Ill. Sept. 8, 2023) (citation omitted).

A motion under Rule 12(b)(6) challenges the sufficiency of the complaint. See

Christensen v. Cnty. of Boone, Ill., 483 F.3d 454, 458 (7th Cir. 2007). When considering a

motion to dismiss under Rule 12(b)(6), the court construes the complaint in the light most

favorable to the plaintiff, accepting all well-pleaded allegations as true, and construing

all reasonable inferences in plaintiff's favor. Christensen, 483 F.3d at 458. To state a claim

for relief, a plaintiff need only provide a short and plain statement of the claim showing

he is entitled to relief and giving defendants fair notice of the claims. Maddox v. Love, 655

F.3d 709, 718 (7th Cir. 2011). However, the complaint must set forth facts that plausibly

demonstrate a claim for relief. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007). A

plausible claim is one that alleges factual content from which the Court can reasonably

infer that defendants are liable for the misconduct alleged. See Ashcroft v. Iqbal, 556 US.

662, 678 (2009).

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B. Jurisdiction

The APA requires that agencies, such as the Department of State, “conclude”

matters presented to them “[w]ith due regard for the convenience and necessity of the

parties ... and within a reasonable time.” 5 U.S.C. § 555(b). When an agency fails to

comply with this requirement, the APA provides for judicial review of an agency decision

that is “unreasonably delayed,” and instructs courts to “compel agency action unlawfully

withheld or unreasonably delayed.” 5 U.S.C. § 706(1). However, the APA prohibits

judicial review of agency action if: (1) “statutes preclude judicial review;” or (2) “agency

action is committed to agency discretion by law.” 5 U.S.C. § 701(a)(1)-(2). “[A] claim

under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take

a discrete agency action that it is required to take.” Norton v. S. Utah Wilderness Alliance, 542

U.S. 55, 64 (2004) (emphasis in original). An unreasonable delay claim under § 706(1) also

requires an agency action that is mandatory because “[a] delay cannot be unreasonable

with respect to action that is not required.” Norton, 542 U.S. at 63 n.1.

Under the Immigration and Nationality Act (“INA”), an alien must obtain a visa

before entering and permanently residing in the United States. 8 U.S.C. § 1181(a). The

INA created a special visa-application process for aliens sponsored by “immediate

relatives” in the United States. 8 U.S.C. §§ 1151(b)(2)(A)(i), 1153(a). Under this process,

the citizen-relative first petitions on behalf of the alien, asking to have the alien classified

as an immediate relative. 8 U.S.C. §§ 1151(f), 1154(a)(1). To do this, the United States

citizen or lawful permanent resident seeking to sponsor their foreign adult child for an

immigrant visa must file a Form 1-130 with USCIS, which is under the purview of the

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DHS. See 8 C.F.R. § 204.1(a)(1). If USCIS approves the Form IJ-130, USCIS sends the form

to the NVC, which is under the purview of the Department of State—not the DHS. See 8

C.F.R. § 204.2(d)(3). Once the NVC receives all of the required documents, the NVC

determines the petition to be “documentarily complete,” and the foreign citizen child can

be scheduled for an appointment for an interview to make a visa petition before a

consular officer. See 22 C.F.R. § 42.67(a)(1), (a)(3). The NVC schedules appointments in

the chronological order of the documentarily complete cases. See 9 FAM 504.4-6a. The

U.S. embassy or consulate determines the availability of an appointment. See id.

The Code of Federal Regulations defines “[m]Jake or file an application for a visa”

as “personally appearing before a consular officer and verifying by oath or affirmation

the statements contained on Form DS-230 or Form DS-260 and in all supporting

documents.” 22 C.F.R. § 40.1(1). “When a visa application has been properly completed

and executed before a consular officer in accordance with the provisions of the INA and

the implementing regulations, the consular officer must issue the visa, refuse the visa . . .

or... discontinue granting the visa.” 22 C.F.R. § 42.81. Taken together, these provisions

provide that a visa application has not been “properly completed and executed” until an

applicant has “personally appear[ed] before a consular officer.” 22 C.F.R. § 40.1(1).

Based on this language, Section 42.81 does not impose a duty for the Department

of State to conduct a consular interview from a person who has filed a visa petition.

Instead, the regulation’s duty is expressly limited to after the interview has already taken

place. See 22 C.F.R. § 42.81.

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Additionally, none of the authorities which Malek relies on support her position

that the Department of State has a duty to act on visa petitions. Most of the cases cited to

by Malek involve delays in processing visa applications. See Iddir v. INS, 301 F.3d 492, 500

(7th Cir. 2002) (“The relevant statutes and regulations confirm that the INS did have the

duty to adjudicate the appellants' applications in a reasonable period of time.”); Alkenani

v. Barrows, 356 F. Supp. 2d 652, 657 (N.D. Tex. Feb. 14, 2005) (“The court has already

determined that respondents have a clear duty to process petitioner’s application for

naturalization within a reasonable time.”); Patel v. Reno, 134 F.3d 929, 932 (9th Cir. 1997)

(noting “[a] consular office is required by law to act on visa applications” which it defined

as “when a visa application has been properly completed and executed before a consular

officer in accordance with the provision of INA and the implementing regulations, the

consular officer shall either issue or refuse the visa.”). The remaining cases involve

applications for adjustment of status, which involve a completely different application

process. Elmalky v. Upchurch, 2007 U.S. Dist. LEXIS 22353 at *6 (N.D. Tex. Mar. 28, 2007);

Villa v. United States Dep’t of Homeland Sec., 607 F. Supp. 2d 359 (N.D.N.Y. Apr. 6, 2009).

Malek does not point to any cases that support her position that the Department of State

has a nondiscretionary duty to schedule a consular interview or issue a ruling on a

Petition for Alien Relative, as opposed to a visa application.

Instead, several courts in this Circuit have determined that there is no statutory or

regulatory authority which sets forth a clear and non-discretionary duty to schedule a

visa interview. In Prince v. Blinken, 2023 U.S. Dist. LEXIS 155143 (N.D. Ind. Aug. 31, 2023),

a US. citizen petitioned for writ of mandamus and brought APA claims against the U.S.

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Department of State alleging an unreasonable delay in adjudication on the immigrant

visa application she filed for her husband in Pakistan. Specifically, the plaintiff and her

husband awaited the scheduling of an interview, as Plaintiff does here. 2023 U.S. Dist.

LEXIS 155143, at *3. The court determined there was not a clear, mandatory duty to

schedule visa interviews. 2023 U.S. Dist. LEXIS 155143, at *7. “The State Department

considers the consular interview as the point at which an application for a visa is made....

and after the interview, the consular officer must issue the visa or refuse the application.”

Id. at *3-4, (internal citations omitted). The court found it significant that the Secretary

was responsible for 230 U.S. posts worldwide, and that allocating the resources at a

specific post is “a discretionary policy decision that relies on the expertise and judgment

of the Secretary and the chief of mission.” Id. at *8. Because the scheduling of visa petition

interviews is a discretionary function of the Department of State, the court found the

plaintiffs were unable to establish a clear and nondiscretionary duty that required such

an interview to be granted by that point. Id.

Similarly, in Khan v. Bitter, 2023 U.S. Dist. LEXIS 174014 (N.D. Ill. Sept. 28, 2023),

the court likewise held that the consular office does not have a clear duty to schedule a

visa interview, so the court lacked jurisdiction to hear the claim under the APA. The court

reasoned, “8 U.S.C. § 1202(b) does not create this duty because as a technical matter,

regulations consider a ‘visa application’ to be made or filed only after the interview itself,

and the duty [to review and adjudicate the application] is invoked only after the

interview.” 2023 U.S. Dist. LEXIS 174014, at *9.

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In sum, the Department of State does not have a nondiscretionary duty to schedule

a consular interview within a specific timeframe. Congress gave the Secretary of State

broad discretion to “administ[er] and [] enforce[]” the Immigration and Nationality Act,

8 U.S.C. § 1104, and to “administer, coordinate, and direct the Foreign Service of the

United States and the personnel of State.” 22 U.S.C. § 2651a. Congress also gave each

Chief of Mission to a foreign country broad discretion to oversee U.S. government

operations in that country. 22 U.S.C. § 3927. Part of that discretionary function is the

ability to schedule interviews for visa applications based on the resources of a particular

post. Therefore, the Court lacks subject matter jurisdiction over the APA claim. 5 U.S.C.

§ 701(a)(1)-(2). The Court declines to address Defendants’ other arguments for dismissing

Count I based on a failure to state a claim under Rule 12(b)(6).

C. Due Process Claim

Malek also alleges her Fifth Amendment rights were violated because Defendants

failed to “provide a reasonable and just framework of adjudication in accordance with

the applicable law” which has caused her family to be separated. The Fifth Amendment

provides that “[n]o person shall be ... deprived of life, liberty, or property, without due

process of law.” U.S. Const. amend. V. The Supreme Court has interpreted the Due

Process Clauses of the Fifth Amendment “to include a substantive component, which

forbids the government to infringe certain fundamental liberty interests at all, no matter

what process is provided, unless the infringement is narrowly tailored to serve a

compelling state interest.” Reno v. Flores, 507 U.S. 292, 301-02 (1993). “[NJarrow tailoring

is required only when fundamental rights are involved,” whereas “[t]he impairment of a

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lesser interest ... demands no more than a ‘reasonable fit’ between governmental purpose

... and the means chosen to advance” it. Id. at 305.

Malek suggests that the right to cohabitate with her son in the United States is an

undeniable injury that demands due process protections. “[T]he right to conceive and

raise one’s children has been deemed an ‘essential, basic civil right[s] of man’” and “the

interests of parents in their children is ‘perhaps the oldest of the fundamental liberty

interests recognized by this Court.” Yafai v. Pompeo, 912 F.3d 1018, 1024 (7th Cir. 2019),

quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972), Troxel v. Granville, 530 U.S. 57, 65 (2000)

(O’Connor, J., plurality opinion). Malek has a constitutionally protected interest in raising

her son, but she does not have a constitutionally projected right to have or raise her son

in the United States. See Gebhardt v. Nielsen, 879 F.3d 980, 988 (9th Cir. 2018) (“[T]he generic

right to live with family is ‘far removed’ from the specific right to reside in the United

States with non-citizen family members.”).

“[A]n unadmitted and nonresident alien... has no right of entry into the United

States, and no cause of action to press in furtherance of his claim for admission.” See Kerry

v. Din, 576 U.S. 86, 88 (2015) (Scalia, J., plurality opinion). While it is understandable that

Malek would like to have her son’s petition processed, she does not have a constitutional

right to have her son’s visa petition interview scheduled as quickly as she desires. If the

“unadmitted and nonresident alien” children do not have a constitutional right of entry,

then their parents cannot use their familial relationship with those children to bypass that

constitutional restriction by asserting that they have a fundamental right to parent their

child in the country of their choosing or the country in which they reside.

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But even if Malek has a protected interest, there is no basis for the assertion that

she has been deprived of that interest. “Due process is flexible and calls for such

procedural protections as the particular situation demands.” Mathews v. Eldridge, 424 U.S.

319, 334 (1976). “To have a property interest in a benefit, a person ... must ... have a

legitimate claim of entitlement to it.” Board of Regents of State Colleges v. Roth, 408 U.S. 564,

977 (1972). “[A] benefit is not a protected entitlement if government officials may grant

or deny it in their discretion.” Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005).

As discussed previously, the consulate offices’ ability to schedule interviews for

visa applications based on the resources of a particular post is a discretionary function.

Because the timing of the consular interview is a discretionary act, there is no due process

violation when the consulate office does not schedule it within a particular timeframe.

Further, the Supreme Court “long ago held that Congress is entitled to set the conditions

for an alien’s lawful entry into this country and that, as a result, an alien at the threshold

of initial entry cannot claim any greater rights under the Due Process Clause.” Dep't of

Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1964 (2020). As a result, the visa-application

procedures cannot violate the Due Process Clause because “[w]hatever the procedure

authorized by Congress is, it is due process.” United States ex. Rel. Knauffv. Shaughnessy,

338 U.S. 537, 544 (1950). Malek’s son has not been denied adjudication of his visa; his visa

petition is still pending and will, following an interview before a consular officer,

ultimately be adjudicated. Thus, Malek and her son have not been denied any procedural

due process right due to the delay of his visa processing.

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Finally, as it relates to the alleged procedural due process violation caused by

CARRP, Malek alleges that CARRP is a policy of the DHS, not the Department of State.

Because the DHS is not a party to this suit and because the State Department

manages visa applications, CARRP does not apply to Malek and neither she nor her son

have been affected by it. As the Complaint is currently framed, Malek has not alleged an

injury-in-fact, and thus does not have standing to pursue this claim. See Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560-61 (1992).

I. CONCLUSION

For the forgoing reasons, Defendants’ Motion to Dismiss is GRANTED without

prejudice.

ENTER: April (2024

LEEN Rk. ESS

UMTED STATESDISTRICT JUDGE

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