# Gilani v. Bitter

> District Court, C.D. Illinois · April 26, 2024

URL: https://www.frixlaw.com/law-library/cases/10137596

## Case

- **Court:** District Court, C.D. Illinois
- **Decided:** April 26, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10137596

## How later opinions describe it (automated extraction)

- finding that plaintiffs “do not have a fundamental right to have or raise their children in the United States”

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10137596. Public record. Not legal advice.