Gilani v. Bitter

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

SAMIE GILANI, )

Plaintiff,

v. Case No. 23-cv-03288

RINA BITTER, 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. (Doc. 6).

I. BACKGROUND

Plaintiff Samie Gilani (“Gilani”) is a United States citizen who submitted an J-130

visa petition for his wife, Rabiya Chauhan, a citizen of Pakistan. (Doc. 1 at 1, 8, 11).

Gilani filed the petition with the United States Citizenship and Immigration Services

(“USCIS”) in November 2021. (Id. at 7 2). On August 22, 2022, USCIS approved Gilani’s

wife’s visa petition and sent the case to the National Visa Center (“NVC”), a part of the

U.S. Department of State for visa processing. (Id. at 19-21). In January 2023, the NVC

notified Gilani that his case was “Documentarily Qualified,” meaning that all necessary

documents had been submitted and the visa petition was pending to be scheduled for an

1 The Defendants are: Rena Bitter, Assistant Secretary for the Bureau of Consular Affairs; the U.S. Embassy

in Pakistan; and Anthony Blinken, the United States Secretary of State.

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interview. (Id. at { 22). Since that time, the Department of State has not conducted

Chauhan’s interview. (Id. at { 24).

On September 29, 2023, Gilani filed a three-count Complaint against Defendants

based on a delay in processing his wife’s visa petition. In Count I, Gilani alleges the

procedure used to process his wife’s visa application violates the Administrative

Procedures Act (“APA”) based on unreasonable delay. (Id. at 4] 25-29). In Count II,

Gilani seeks a writ of mandamus based on the same delay. (Id. at 30-36). In Count III,

Gilani alleges ‘s delay violates his Fifth Amendment Due Process rights. (Id. at 37-41).

On December 21, 2023, Defendants filed their Motion to Dismiss for Failure to State

a Claim and Lack of Subject Matter Jurisdiction. (Doc. 6). In the Motion, Defendants

argue Gilani has failed to demonstrate that there is a mandatory, non-discretionary duty

to schedule his wife for an interview, which they argue precludes Gilani from proceeding

under the APA. Defendants also argue that Gilani’s Complaint should be dismissed

because the delay in scheduling his wife's visa interview has not been unreasonable. On

January 18, 2024, Gilani filed his Response (Doc. 10), arguing Defendants do have a clear,

non-discretionary duty to schedule an interview on the visa petition in a timely manner

and that they delay has violated his constitutional rights.

II. LEGAL STANDARD

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 “[iJn the context of a motion to dismiss for lack

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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 sufficient but the

defendant contends there is in fact 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).

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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Ill, ANALYSIS

In its Motion to Dismiss, Defendants contend Counts I and II should be dismissed

under Rule 12(b)(1) because this Court lacks subject matter jurisdiction over Gilani’s APA

claims and request for a writ of mandamus. Specifically, Defendants argue Gilani is not

owed a mandatory, non-discretionary duty by Defendants to schedule an interview, thus

depriving the Court of subject matter jurisdiction under the APA. Defendant further

argue Gilani’s due process rights have not been violated because the pendency of Gilani’s

wife’s visa petition is not the deprivation of any Fifth Amendment right. In response,

Gilani argues the Court does have subject matter jurisdiction over his APA and

mandamus claims and that his due process injury is not the denial of his wife’s

application, but the deprivation of a final decision within a reasonable time.

A. 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

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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 US. 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 spouse for an

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

DHS. See 8 C.F.R. § 204.1(a)(1). If USCIS approves the Form I-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 relative

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

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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.

The cases which Gilani relies on do not support his position that the Department

of State has a duty to act on visa petitions. Gilani’s cited authority involves 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.”); 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, or visa applications that had been pending for nearly a decade.

Jianhua Dong v. Chertoff, 513 F. Supp. 2d 1158 (N.D. Cal. 2007) (adjustment of status);

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Marwah Al Ihsan Al-Gharawy v. U.S. Department of Homeland Security, 617 F. Supp. 3d 1

(D.D.C. 2022) (immigration visa applications pending for over eight years). Gilani does

not point to any controlling authority to support his position that the Department of State

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

Petition for Alien Review, 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 U.S. citizen petitioned for a writ of mandamus and brought an APA claim against the

U.S. Department of State for an unreasonably delayed adjudication on the immigrant visa

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

awaited the scheduling of an interview, as Gilani’s does here for his wife. Id. at *3. The

court determined there was not a clear, mandatory duty to schedule visa interviews. Id.

at *9. “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. Thus,

because the scheduling of visa petition interviews is a discretionary function of the State

Department, the plaintiffs were unable to establish a clear and nondiscretionary duty that

required such an interview to be granted by that point. Id. at *9.

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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.

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 US.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.

§ (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).

B. Mandamus Act

Gilani’s second claim seeks a writ of mandamus to compel Defendants to

adjudicate his wife’s visa application. Pursuant to 28 U.S.C. § 1361, “[t]he district courts

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shall have original jurisdiction of any action in the nature of mandamus to compel an

officer or employee of the United States or any agency thereof to perform a duty owed to

the plaintiff.” 28 U.S.C. § 1361. “Mandamus relief will be granted if the plaintiff can

demonstrate that the three enumerated conditions are present: (1) a clear right to the relief

sought; (2) that the defendant has a duty to do the act in question; and (3) no other

adequate remedy is available.” Iddir, 301 F.3d at 499. “These three threshold requirements

are jurisdictional; unless all are met, a court must dismiss the case for lack of jurisdiction.”

American Hospital Ass‘n v. Burwell, 812 F.3d 183, 189, 421 U.S. App. D.C. 123 (D.C.C. 2016).

A district court’s “consideration of any mandamus petition starts from the premise that

issuance of the writ is an extraordinary remedy, reserved only for the most transparent

violations of a clear duty to act.” Aljabari v. Mayorkas, 2022 U.S. Dist. LEXIS 103212, 2022

WL 2073047, at *2 (N.D. Ill. June 9, 2022) (internal quotations omitted).

As with the APA, the lack of a mandatory, non-discretionary duty deprives this

Court of subject-matter jurisdiction over the mandamus claim. Burwell, 812 F.3d at 189.

Even if the Court were to find there it has subject matter jurisdiction, Gilani’s mandamus

action would not pass muster on the next inquiry — whether the delay has been

unreasonable. See Khan, 2023 U.S. Dist. LEXIS 174014, at *10. The Seventh Circuit has not

yet considered mandamus actions in the context of family-based visas but has done so in

the context of U-Visas — a separate visa category. In Calderon-Ramirez v. McCament, it was

uncontested that the relevant U-Visa statute required the U.S. State Department to

process applications within a “reasonable period of time.” 877 F. 3d 272, 275 (7th Cir.

2017). However, the court found that the plaintiff was unable to “set forth any facts that

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differentiate himself from other petitioners waiting ahead of him for adjudication.” Id. at

275-276. The sequence in which U-Visa applications were processed depended on an

applicant's position in the queue, and the Seventh Circuit did not find that the plaintiff's

“wait time has been more unreasonable than other petitioners waiting in the same line.”

Id. at 276,

Gilani filed his Complaint in September 2023 - less than two years after filing his

visa petition on behalf of his wife in November 2021, and only nine months after being

notified that the petition was complete in January 2023. While the Court sympathizes

with the hardships Gilani and his wife experience as they await the adjudication of the

visa petition, the two years that Gilani has waited for his wife’s visa does not come close

to the delays that courts have considered unreasonable. See Sarlak, 2020 U.S. Dist. LEXIS

101881, 2020 WL 3082018, at *6 (“[DJelays of about two years .. . have been deemed

reasonable as a matter of law.”); Ghadami, 2020 U.S. Dist. LEXIS 47623, 2020 WL 1308376,

at *9 (“[T]he Court finds itself constrained not to declare two years to be unreasonable as

a matter of law”). Without a congressionally supplied yardstick, some district courts have

even reasoned that “immigration delays in excess of five, six, [or] seven years are

unreasonable, while those between three to five years are often not unreasonable.” Yavari

v. Pompeo, No. 19-cv-02524, 2019 U.S. Dist. LEXIS 216070, 2019 WL 6720995, at *8 (C.D.

Cal. Oct. 10, 2019). The Court’s analysis could change the longer Gilani and his wife wait,

but at this point, Gilani’s allegations do not allow for a finding of unreasonable delay for

purposes of both his APA and mandamus claims. Moreover, the fact that Gilani has not

identified any basis to differentiate he and his wife’s situation from that of other

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applicants who applied before them further underscores the inapplicability of a writ of

mandamus. Calderon-Ramirez, 877 F.3d at 275-76.

Accordingly, as with Gilani’s APA claim, the lack of a mandatory, non-

discretionary duty deprives this Court of subject-matter jurisdiction over the mandamus

claim. Even if the Court had subject matter jurisdiction, Gilani has not set forth any facts

that distinguish his wife’s visa application from other applicants who filed before her and

are still waiting for their petitions to be processed. Consequently, in light of Calderon-

Ramirez, the Court is compelled to conclude Gilani has also failed to allege facts sufficient

to establish that his wife possesses a right to “skip ahead of other petitioners,” thus

making a writ of mandamus unwarranted. 877 F.3d at 275,

C. Constitutional Claims

Gilani’s third claim asserts Defendants have violated his substantive and

procedural due process rights protected by the Fifth Amendment by failing to adjudicate

his wife’s visa petition. Defendants argue Gilani has not been deprived of a constitutional

right because his wife’s visa petition has not been erroneously denied. Gilani fails to

address or elaborate on his due process claim in his Response.

1. Substantive Due Process

The Supreme Court has interpreted the Due Process Clauses of the Fifth and

Fourteenth Amendments “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). “[N]arrow tailoring is required

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

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

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

Gilani’s claim suggests that the right to cohabitate with one’s family is an

undeniable injury under Article III. But Gilani points to no case law at all, let alone case

law binding on this Court, that recognizes a fundamental constitutional right to

cohabitate with one’s family members within the United States. Rather, as the Ninth Circuit

has explained, the theory that individuals have “a fundamental right to reside in the

United States with [their] non-citizen relatives ... runs headlong into Congress’ plenary

power over immigration.” Gebhardt v. Nielsen, 879 F.3d 980, 988 (9th Cir. 2018). Gilani’s

“generic right to live with family is far removed from the specific right to reside in the

United States with non-citizen family members.” Id.; see also Alharbi v. Miller, 368 F. Supp.

3d 527, 570-71 (E.D.N.Y. 2019) (finding that plaintiffs “do not have a fundamental right

to have or raise their children in the United States”).

Gilani’s claim regarding familial unity does not constitute a recognized

fundamental right under the U.S. Constitution. While it is understandable that Gilani

would like to have his wife’s petition processed, he does not have a constitutional right

to have his wife’s visa petition interview scheduled as quickly as he desires. Additionally,

the time taken by USCIS to process Form 1-130 petitions, including those filed by Gilani,

is directly related to USCIS’s obligation to accurately assess visa eligibility while

managing public resources. Accordingly, Gilani has not presented a valid cause of action

for the infringement of his substantive due process rights.

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2. Procedural Due Process

“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, 577 (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).

The Ninth Circuit has found that the “grant of an I-130 petition for immediate

relative status is a nondiscretionary decision” and therefore “a right to which citizen

applicants are entitled as long as the petitioner and spouse beneficiary meet the statutory

and regulatory requirements for eligibility” —in other words, a “ protected interest [that]

is entitled to the protections of due process.” Ching v. Mayorkas, 725 F.3d 1149, 1156 (9th

Cir. 2013). 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 the

petitioner's desired timeframe. Furthermore, 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. Knauff'v. Shaughnessy, 338 U.S. 537, 544 (1950).

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Even if Gilani has a protected interest in the approval of his wife’s Form-130

petition, and assuming he meets the requirements of demonstrating eligibility by a

preponderance of the evidence, there is no foundation for his claim that Defendants have

denied him of that interest. Gilani’s claim is not based on an erroneous denial of his wife’s

visa petition. Instead, he contends he has been deprived of his statutorily created

entitlement to the adjudication of his wife’s visa petition. However, Gilani’s wife has not

been denied adjudication of her visa; her visa petition is still pending and will, following

an interview before a consular officer, ultimately be adjudicated. Accordingly, Gilani has

failed to sufficiently allege either that he and his wife are entitled to the granting of the

visa petition or that the mere pendency of the petition constitutes a deprivation of that

benefit.

IV. CONCLUSION

For the forgoing reasons, Defendants’ Motion to Dismiss (Doc. 6) is GRANTED.

Gilani’s Complaint is DISMISSED WITHOUT PREJUDICE.

ENTER: April;@#2024

COL R. LAWLESS

NITEDSTATES DISTRICT JUDGE

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