Almaklani v. Nielsen

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

KASSEM ALMAKALANI, et al.,

MEMORANDUM & ORDER

Plaintiffs, 18-CV-398 (NGG) (CLP)

-against-

KEVIN MCALEENAN, et al.,

Defendants.

NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiffs are 47 citizens and legal permanent residents (“LPRs”)

of the United States and 86 of their family members, who are

citizens of Yemen seeking to lawfully immigrate to the United

States. (Am. Compl. (Dkt. 31) ¶¶ 1, 13-153; Gov’t Mem. in Supp.

of Mot. for Summ. J. and Mot. to Dismiss (“Mem.”) (Dkt. 66) at

1.) The U.S. citizen and LPR plaintiffs (“Plaintiff-Petitioners”)

have petitioned on behalf of the Yemeni plaintiffs to whom they

are related (“Plaintiff-Beneficiaries”) by filing Form I-130 Peti-

tions for Alien Relatives with U.S. Citizenship and Immigration

Services (“USCIS”). (Am. Compl. ¶¶ 1-2.) Plaintiffs allege that the

adjudication of their petitions has been unduly and unreasonably

delayed as a result of “intentional and discriminatory practices,

procedures, policies, and programs enacted to stymy and prevent

Yemeni Muslim immigration to the United States.” (Id. ¶ 8.)

They seek various remedies, including a writ of mandamus com-

pelling the adjudication of their petitions; injunctive relief

pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C.

§ 701 et seq.; declaratory relief under the Declaratory Judgment

Act, 28 U.S.C. § 2201 et seq.; damages and injunctive relief pur-

suant to the alleged violation of their constitutional rights under

the First Amendment and Fifth Amendment; and damages and

injunctive relief pursuant to 42 U.S.C. § 1985, which prohibits

conspiracies to interfere with civil rights. (Id. ¶¶ 512-77.)

Pending before the court is Defendants’ motion for summary

judgment on Plaintiffs’ APA claims and for dismissal of Plaintiffs’

remaining claims for lack of subject matter jurisdiction and fail-

ure to state a claim. (See Mem.; Pls.’ Resp. in Opp. to Mot. for

Summ. J. and Mot. to Dismiss (“Opp.”) (Dkt. 67); Gov’t Reply

Mem. (“Reply”) (Dkt. 68).) Also pending is Plaintiffs’ appeal of

Chief Magistrate Judge Cheryl L. Pollak’s March 17, 2020 order

denying Plaintiffs’ motion for additional discovery and November

24, 2020 order denying Plaintiffs’ motion for reconsideration of

the March 17, 2020 order. (See Pls.’ Appeal of Magistrate Judge

Decision (“Appeal Mem.”) (Dkt. 86); Gov’t Mem. in Opp. to Ap-

peal (“Appeal Opp.”) (Dkt. 87); Pls.’ Reply in Supp. of Appeal

(“Appeal Reply”) (Dkt. 88).)

For the reasons explained below, Defendants’ (Dkt. 66) Motion

for Summary Judgment and Motion to Dismiss is GRANTED with

prejudice, and Plaintiffs’ (Dkt. 86) Appeal of Judge Pollak’s or-

ders regarding discovery is DENIED as moot.

I. BACKGROUND

A. Factual Background

1. Form I-130 Petitions and Yemen Guidance

The Immigration and Nationality Act (“INA”) grants the Depart-

ment of Homeland Security the authority to adjudicate

immigration petitions. (Am. Compl. ¶ 449; Mem. at 4.) Under

the INA and its implementing regulations, a U.S. citizen or LPR

may petition for an alien relative to be deemed eligible for an

immigrant visa by filing a Form I-130 Petition for Alien Relative

(“Form I-130 petition”). (Am. Compl. ¶ 450; Mem. at 4.) U.S.

citizens may petition on behalf of their spouses, parents, children,

and siblings, while LPRs may petition only on behalf of their

spouses and unmarried children. (Mem. at 4-5.) The purpose of

Form I-130 is to establish the existence of a qualifying relation-

ship between the U.S. citizen or LPR petitioner and the alien

beneficiary. (Id. at 4.) USCIS, which adjudicates Form I-130 pe-

titions, will approve them if the petitioner’s status as a U.S.

citizen or LPR, the beneficiary’s qualifying relationship to the pe-

titioner, and (in the case of spousal petitions) the bona fides of

the marriage are satisfactorily established. (Id. at 5-6.)

A Form I-130 petitioner bears the burden of establishing the ben-

eficiary’s eligibility by a preponderance of the evidence. (Id. at 5;

Am. Compl. ¶ 451.) To the extent possible, Form I-130 petitions

must be supported by primary evidence, such as official birth,

death, adoption, and marriage certificates issued by the benefi-

ciary’s home government. (Am. Compl. ¶ 452; Mem. at 5.) See 8

C.F.R. §§ 204.1(f)(1), 204.2. The INA’s implementing regula-

tions provide that the unavailability of primary evidence creates

a presumption of ineligibility. Id. § 103.2(b)(2)(i). Secondary ev-

idence, which includes non-governmental records, affidavits, and

scientific evidence, may be submitted to rebut the presumption

of ineligibility if primary evidence is unavailable. (Mem. at 5; Am.

Compl. ¶ 453.) In adjudicating Form I-130 petitions, USCIS has

the discretion to determine what supporting evidence is credible

and what weight to ascribe to it. 8 C.F.R. § 204.1(f)(1). If USCIS

cannot approve a petition based on the evidence submitted, it

may require petitioners and beneficiaries “to appear for an inter-

view and/or biometric collection.” Id. § 103.2(b)(9).

In September 2009, the State Department and its embassy in

Sana’a, Yemen documented findings regarding the reliability of

primary evidence submitted in connection with Form I-130 peti-

tions on behalf of Yemeni beneficiaries in a confidential

diplomatic cable. (Mem. at 11.) The State Department observed

that in Yemen, official records are not created contemporane-

ously with life events such as birth, death, marriage, and divorce;

rather, “court judgments” based on witness testimony are issued

retrospectively to meet requests for such documentation. (Id.)

The State Department concluded that court judgments from

Yemen are particularly susceptible to error or fraud for this rea-

son, and it directed USCIS adjudicators to give Yemeni court

judgments no more weight than affidavits—in other words, to

treat them as secondary rather than primary evidence. (Id. at 11-

13.) As a result, primary evidence is categorically unavailable for

Form I-130 petitions on behalf of Yemeni beneficiaries, and

therefore such beneficiaries are presumptively ineligible for im-

migration visas. See 8 C.F.R. § 103.2(b)(2)(i).

Beginning in 2008, even before the State Department diplomatic

cable was issued, USCIS officials considered what additional in-

formation they should require of Yemeni Form I-130 applicants

in order to overcome the presumption of ineligibility. (Mem. at

14-15.) On May 25, 2012, USCIS issued a policy memorandum

entitled “Supplemental Guidance for Adjudicating Family-Based

Petitions Supported by Relationship Documents Actually or Pur-

portedly Issued by a Civil Authority in Yemen” (the “Yemen

Guidance”). (Id. at 15.) The Yemen Guidance introduced revi-

sions to relevant portions of USCIS’s Adjudicator’s Field Manual.

(Certified Administrative Record (“AR”) (Dkt. 37-1) at 001-09.)

The Yemen Guidance explains that “USCIS is aware that civil

documents purportedly or actually issued in Yemen to establish

claimed familial relationships … are generally based on infor-

mation furnished by an interested party” and that, at the

direction of the State Department, USCIS therefore “regards

these documents as insufficient to establish claimed familial re-

lationships under a preponderance of the evidence standard,

without additional evidence to corroborate the relationship.” (Id.

at 001.) It goes on to state that “the use of all available methods

to evaluate the bona fides of the claimed familial relationship(s)

is reasonable and necessary.” (Id. at 002.)

The Yemen Guidance sets forth procedures for requesting addi-

tional corroborating evidence to assist in the adjudication of

Form I-130 petitions supported by Yemeni documents, including

that USCIS must invite the voluntary submission of DNA evi-

dence but may not make such evidence mandatory or treat a

petitioner’s decision not to submit DNA evidence as “derogatory.”

(Id. at 003.) USCIS may approve petitions on the basis of DNA

evidence or, alternatively, on the basis of additional secondary

evidence (such as school records, medical records, and religious

records) and an interview. (Id.) The Yemen Guidance provides

that petitions on behalf of Yemeni beneficiaries may not be fa-

vorably adjudicated without either DNA test results or an

interview of the petitioner. (Id.) A petitioner who declines to sub-

mit DNA evidence and receives a Notice of Intent to Deny

(“NOID”) her petition must be given an additional opportunity

to submit DNA evidence prior to final adjudication. (Id. at 003-

04.)

Plaintiffs allege that the protocols outlined in the Yemen Guid-

ance hold Form I-130 petitions on behalf of Yemeni beneficiaries

to a higher standard of proof than petitions on behalf of non-

Yemeni beneficiaries. (Am. Compl. ¶¶ 457, 460.) They further

allege that the policies and procedures for adjudicating Yemeni

Form I-130 petitions were “enacted to stymy and prevent Yemeni

Muslim immigration to the United States of America” and dis-

criminate against Yemeni petitioners and beneficiaries on the

basis of their race, religion, and national origin. (Id. ¶¶ 458, 468.)

They contend that these policies and practices are the result of a

conspiracy between the Defendants—all members of former

President Donald J. Trump’s administration, including former

President Trump himself—to halt Yemeni Muslim immigration

to the United States. (Id. ¶¶ 480, 484-506.)

2. Plaintiffs’ Form I-130 Petitions

Plaintiffs are 136 individuals who identify as “Yemeni nationals

and [the U.S. Citizen and LPR] family members petitioning on

their behalf.” (Id. ¶¶ 1, 13-153.) They allege that they all have

Form I-130 petitions pending which are “ripe for adjudication,”

but that adjudication of their petitions has been unfairly delayed

due to Defendants’ discriminatory policies and practices. (Id. ¶¶

2, 8, 167, 173, 179, 185, 191, 197, 203, 209, 215, 221, 227, 233,

239, 245, 251, 257, 263, 269, 275, 281, 287, 293, 299, 305, 311,

317, 323, 328, 334, 340, 346, 352, 358, 364, 370, 376, 382, 388,

394, 400, 406, 412, 418, 424, 430, 436, 442, 448.) Defendants

have identified 87 petitions brought by or on behalf of Plaintiffs,

which account for 133 of the Plaintiffs: 47 Plaintiff-Petitioners

and 86 Plaintiff-Beneficiaries.1 (Mem. at 17; Decl. of Timothy

Houghton (“Houghton Decl.”) (Dkt. 66-2) ¶¶ 13-15.)

Defendants contend, and Plaintiffs appear to concede, that as of

June 28, 2019 (when Defendants served their Reply memoran-

dum) 76 of the 87 petitions filed by or on behalf of Plaintiffs had

already been adjudicated, and that 49 of those 76 petitions were

approved. (Mem. at 17-18; Opp. at 16; Reply at 13-14.) Of the

remaining eleven petitions, two are “immediate relative peti-

tions,” meaning that the Plaintiff-Beneficiaries are parents,

spouses, or unmarried children of U.S. citizen Plaintiff-Petition-

ers, who could presumably obtain a visa in short order following

the approval of their petitions. (Mem. at 4-5, 8, 26-27; Reply at

13-14.) Defendants indicated that as of June 28, 2019, those two

petitions, one of which had previously been delayed due to the

petitioner’s incarceration, were nearing final adjudication.

1 Defendants indicate that they are unable to identify the petitions associ-

ated with three plaintiffs. (Houghton Decl. ¶ 15.) Several Plaintiff-

Petitioners have petitioned on behalf of multiple Plaintiff-Beneficiaries,

and one Plaintiff-Beneficiary is the subject of two petitions. (Mem. at 17.)

(Mem. at 19; Reply at 14.) The other nine pending petitions are

“family-preference petitions,” meaning that the Plaintiff-Benefi-

ciaries are either siblings or married children of U.S. citizen

petitioners or relatives of LPR petitioners. (Mem. at 4-5, 26-27;

Reply at 13-14.) Limited immigrant visas are available for bene-

ficiaries of family-preference petitions, and visas are issued based

on the petition’s submission date, regardless of the length of time

the petitions are pending prior to approval. (Mem. at 8-9.) De-

fendants contend, and Plaintiffs do not dispute, that based on

their relatively recent priority dates, the nine pending family-

preference petitions would not yet have resulted in the issuance

of visas even if they had been fully and favorably adjudicated.2

(Mem. at 18; Reply at 14-15.)

B. Procedural History

Plaintiffs filed their initial complaint on January 19, 2018 and

their amended complaint on June 6, 2018. (See Compl. (Dkt. 1);

Am. Compl.) Plaintiffs seek to compel USCIS to adjudicate their

petitions by bringing claims for a writ of mandamus and for in-

junctive relief under the APA. (Am. Compl. ¶¶ 512-30.) They also

seek a declaratory judgment that Defendants’ alleged delay in

adjudicating Plaintiffs’ petitions violated federal law. (Id. ¶¶ 531-

35.) Plaintiffs also claim that Defendants’ policies and practices

with respect to adjudicating their petitions are unlawful under

the APA. (Id. ¶¶ 521-30.) They further seek to establish that De-

fendants’ policies and practices with respect to their Form I-130

petitions have violated their Fifth Amendment rights to proce-

dural due process, substantive due process, and equal protection,

as well as their rights under the Establishment Clause of the First

2 The pending family-preference petitions have priority dates between

2015 and 2017. In several cases, the applicable visas are available only to

Form I-130 beneficiaries with priority dates more than a decade prior to

the priority dates of the Plaintiff-Beneficiaries. (See Mem. at 18.)

Amendment. (Id. ¶¶ 536-59.) Finally, Plaintiffs claim that De-

fendants’ conduct amounts to a conspiracy to interfere with their

civil rights, in violation of 42 U.S.C. § 1985. (Id. ¶¶ 560-77.)

On March 28, 2019, Defendants filed their fully briefed motion

to dismiss the amended complaint and for summary judgment.

Defendants seek summary judgment on Plaintiffs’ APA claims

and seek the dismissal of Plaintiffs’ other claims for lack of subject

matter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1), and for

failure to state a claim for relief, pursuant to Fed. R. Civ. P.

12(b)(6). (See Mem. at 3-4.)

On August 12, 2019, Plaintiffs filed a fully briefed motion seeking

discovery, including USCIS training documents, documents re-

lating to the formulation of the Yemen Guidance, unredacted

copies of USCIS internal policy memoranda, and materials re-

lated to USCIS’s adjudication of non-Yemeni Form I-130

petitions, for comparative purposes. (March 13, 2020 Mem. &

Order (“Discovery M&O”) (Dkt. 75) at 4-5; Mot. for Discovery

(Dkt. 71).) Defendants opposed the motion on the grounds that

discovery is not proper in APA challenges, because the district

court’s role is limited to reviewing the reasonableness of agency

decisions based on the administrative record and does not en-

compass the court’s usual factfinding function. (Defs.’ Mem. in

Opp. to Mot. for Discovery (Dkt. 72) at 1.) Plaintiffs argued that

discovery beyond the administrative record was appropriate be-

cause, in addition to their APA claim, they had raised several

constitutional challenges. (Mot. for Discovery at 6-8.) In a March

13, 2020 Memorandum and Order, Chief Magistrate Judge

Cheryl L. Pollak denied Plaintiffs’ Motion for Discovery, conclud-

ing that Plaintiffs had not established the need for additional

discovery beyond the scope of the administrative record. (Discov-

ery M&O at 9, 15, 18.)

On March 26, 2020, Plaintiffs moved for reconsideration of

Judge Pollak’s order denying their Motion for Discovery. (See

Mot. for Recons. (Dkt. 76); Defs.’ Resp. in Opp. to Mot. for Re-

cons. (“Recons. Opp.”)(Dkt. 77); Pls.’ Reply (Dkt. 78).) On

November 24, 2020, Judge Pollak issued a Memorandum and

Order denying Plaintiffs’ motion. (Nov. 24, 2020 Mem. & Order

(“Recons. M&O”) (Dkt. 83).) Plaintiffs subsequently filed an ap-

peal of Judge Pollak’s decision to this court, pursuant to Rule 72

of the Federal Rules of Civil Procedure. (See Appeal Mem.)

II. LEGAL STANDARD

A. Fed. R. Civ. P. 12(b)(1)

Under Rule 12(b)(1), a district court must dismiss a case when it

“lacks the statutory or constitutional power to adjudicate it.”

Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).3 In

reviewing a motion to dismiss under Rule 12(b)(1), the court

must accept all material factual allegations in the complaint as

true, see Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131

(2d Cir. 1998), but should not draw “argumentative inferences

favorable to the party asserting jurisdiction.” Atl. Mut. Ins. Co. v.

Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992) (cit-

ing Norton v. Larney, 266 U.S. 511, 515 (1925)). The court may

refer to evidence outside the pleadings. See Makarova, 201 F.3d

at 113 (citing Kamen v. American Tel. & Tel. Co., 791 F.2d 1006,

1011 (2d Cir. 1986) (stating that “evidentiary matter may be pre-

sented by affidavit or otherwise” under a Rule 12(b)(1)

motion)). The non-moving party bears the burden of showing,

by a preponderance of the evidence, that the court has subject

matter jurisdiction over its claims. See id.

3 When quoting cases, and unless otherwise noted, all citations and quota-

tion marks are omitted, and all alterations are adopted.

B. Fed. R. Civ. P. 12(b)(6)

To survive a Rule 12(b)(6) motion to dismiss for failure to state

a claim, “a complaint must contain sufficient factual matter, ac-

cepted as true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint

must contain facts that do more than present a “sheer possibility

that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.

To decide a defendant’s motion to dismiss, the court “will accept

all factual allegations in the [c]omplaint as true and draw all rea-

sonable inferences in [Plaintiffs’] favor.” L-7 Designs, Inc. v. Old

Navy, LLC, 647 F.3d 419, 429 (2d Cir. 2011). However, the court

will “identify[] pleadings that, because they are no more than

conclusions, are not entitled to the assumption of truth.” Iqbal,

556 U.S. at 679. The court must then evaluate the “well-pleaded

factual allegations” and “determine whether they plausibly give

rise to an entitlement to relief.” Iqbal, 556 U.S. at 679. This plau-

sibility analysis “does not impose a probability requirement at the

pleading stage,” but requires the complaint to provide “enough

fact to raise a reasonable expectation that discovery will reveal

evidence of illegality.” Arista Records, LLC v. Doe 3, 604 F.3d 110,

120 (2d Cir. 2010) (quoting Twombly, 550 U.S. at 556).

C. Summary Judgment

Summary judgment is appropriate “if the movant shows that

there is no genuine dispute as to any material fact and the mo-

vant is entitled to judgment as a matter of law.” Fed. R. Civ. Pro.

56(a). “The role of the court is not to resolve disputed issues of

fact but to assess whether there are any factual issues to be tried.

In determining whether summary judgment is appropriate, this

[c]ourt will construe the facts in the light most favorable to the

non-moving party and must resolve all ambiguities and draw all

reasonable inferences against the movant.” Brod v. Omya, Inc.,

653 F.3d 156, 164 (2d Cir. 2011).

“Where a party seeks review of agency action under the APA, the

district judge sits as an appellate tribunal and the entire case on

review is a question of law.” Brezler v. Mills, 220 F. Supp. 3d 303,

321 (E.D.N.Y. 2016). Summary judgment determinations are

“generally appropriate in APA cases because the question of

whether an agency’s decision is arbitrary and capricious is a legal

issue amenable to summary disposition.” Id.

D. Fed. R. Civ. P. 72 Appeal

Under Rule 72(a) of the Federal Rules of Civil Procedure, a mag-

istrate judge’s order regarding a non-dispositive pretrial matter

“will be modified or set aside by the district judge assigned to the

case only where the order is clearly erroneous or contrary to

law.” Travel Sentry, Inc. v. Tropp, 669 F. Supp. 2d. 279, 283

(E.D.N.Y. 2009). “Matters concerning discovery are generally

considered ‘nondispositive’ of the litigation.” Thomas E. Hoar, Inc.

v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990). The district

court considers objections to a magistrate judge’s order on a non-

dispositive matter “as an appeal from that order.” Travel Sentry,

669 F. Supp. 2d at 283. An order “is clearly erroneous only when

the reviewing court, based on the entire evidence, is left with the

definite and firm conviction that a mistake has been committed.”

Id. (quoting Concrete Pipe and Prods. Of Cal., Inc. v. Constr. Labor-

ers Pension Trust for South Cal., 508 U.S. 602, 622 (1993)). “An

order is contrary to law when it fails to apply or misapplies rele-

vant statutes, case law or rules of procedure.” Id. Pursuant to this

highly deferential standard of review, magistrate judges are af-

forded broad discretion in resolving discovery disputes, and

reversal is appropriate only if that discretion is abused. Id.

III. DISCUSSION

A. APA Claim

Plaintiffs seek judicial review of USCIS adjudication policies pur-

suant to the APA, 5 U.S.C. § 701, et. seq. (Am. Compl. ¶¶ 521-

30.) Plaintiffs argue that the Yemen Guidance should be set aside

on the grounds that it is “arbitrary, capricious, an abuse of dis-

cretion, or not otherwise in accordance with law” and “without

observance of procedure required by law.” See 5 U.S.C. §

706(2)(A), (D). They also ask the court to direct the expedited

adjudication of their petitions, consistent with its authority under

the APA to “compel agency action unlawfully withheld or unrea-

sonably delayed.” See id. § 706(1). As explained below, the court

finds that Plaintiffs have failed to establish that the Yemen Guid-

ance is unlawful under any of these provisions of the APA.

1. Section 706(2)(A)

Under the APA, a reviewing court must “hold unlawful and set

aside agency action” that is “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5 U.S.C. §

706(2)(A). The agency is required to “articulate a satisfactory ex-

planation for its action including a rational connection between

the facts found and the choice made.” Motor Vehicle Mfrs. Ass'n of

the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983). Agency action is arbitrary and capricious if “the agency

has relied on factors Congress has not intended it to consider,

entirely failed to consider an important aspect of the problem,

offered an explanation for its decision that runs counter to the

evidence before the agency, or is so implausible that it could not

be ascribed to a difference in view or the product of agency ex-

pertise.” Nat. Res. Def. Council v. U.S. E.P.A., 658 F.3d 200, 215

(2d Cir. 2011).

The scope of a reviewing court's inquiry is “narrow.” Dep't of Com-

merce v. New York, 139 S. Ct. 2551, 2569 (2019). The court

“defer[s] to an agency’s determinations so long as the agency

gives adequate reasons for its decisions, in the form of a satisfac-

tory explanation for its action including a rational connection

between the facts found and the choice made.” Nat. Res. Def.

Council, Inc. v. U.S. Envtl. Prot. Agency, 961 F.3d 160, 170 (2d

Cir. 2020). When reviewing agency action that represents a

change to agency policy, a reviewing court generally applies this

same standard. See id. Agencies “are free to change their existing

policies as long as they provide a reasoned explanation for the

change,” but the agency “must at least display awareness that it

is changing position and show that there are good reasons for the

new policy.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117,

2125-26 (2016).

Plaintiffs do not dispute Defendants’ claim that the civil records

available to Yemeni applicants are particularly susceptible to er-

ror or fraud because they are not created contemporaneously

with the events that they purport to document. The administra-

tive record provides ample corroboration for the unreliability of

Yemeni public records. For example, in 2008, a USCIS Benefit

Fraud and Compliance Assessment found a 45% rate of fraud

among Yemeni I-130 applications, and USCIS officers com-

mented that they had long struggled to adjudicate Yemeni

petitions through a paper process alone. (AR at 027.) A technical

report from the United Nations in 2009 cited a 2003 survey of

Yemen’s civil registration system, which found that only 39% of

births and 13% of deaths were catalogued. (Id. at 042.)

In light of the undisputed, well documented conclusion that Yem-

eni civil records are often inaccurate or unreliable, USCIS officials

had a sound factual basis for their conclusion that such records,

taken alone, were “insufficient to establish claimed familial rela-

tionships under a preponderance of the evidence standard” — or,

in other words, that they were not sufficiently reliable to consti-

tute primary evidence of a qualifying familial relationship. (Id. at

001.) The presumption of ineligibility, which Plaintiffs character-

ize as grounded in discriminatory animus, in fact follows directly

from the application of that conclusion to the INA’s implementing

regulation, which provides that “[t]he non-existence or other un-

availability of required evidence” such as official marriage

licenses or birth certificates “creates a presumption of ineligibil-

ity.” 8 C.F.R. § 103.2(b)(2)(i).

Moreover, the stated objective and function of the Yemen Guid-

ance is not to disqualify Form I-130 petitions on behalf of Yemeni

nationals, but rather to establish and standardize the means by

which petitioners may rebut the presumption of ineligibility—a

presumption that arises not from the Yemen Guidance, but rather

from the regulations providing that applications without primary

evidence are presumptively ineligible and the State Department

guidance that Yemeni court judgments do not constitute primary

evidence. Starting from the uncontested premise that Yemeni

civil records are unreliable, the additional procedures set forth by

the Yemen Guidance for gathering supporting evidence and ad-

judicating Yemeni Form I-130 petitions are rational. Accordingly,

the court finds that USCIS’s changed policies and practices in ad-

judicating Yemeni Form I-130 Petitions, as set forth in the Yemen

Guidance, are neither arbitrary nor an abuse of discretion.

Nor is the Yemen Guidance contrary to law. Plaintiffs contend

that USCIS has replaced the INA’s “preponderance of the evi-

dence” burden of proof with an elevated “fraudulent until proven

otherwise” standard for Yemeni applicants. (Am. Compl. ¶¶ 460-

61; Mem. at 8.) The court recognizes that, as a practical matter,

the procedures set forth in the Yemen Guidance impose a height-

ened evidentiary burden on Yemeni beneficiaries and their

family-member petitioners, relative to applicants who may be

able to able to establish eligibility through primary evidence. But

Plaintiffs have not established that their petitions are held to a

different standard than other petitions for which primary evi-

dence is unavailable; nor have they established that petitions,

like theirs, which are evaluated on the basis of secondary evi-

dence are held to a higher burden of proof, as opposed to a

distinct evidentiary burden. Because Form I-130 petitioners bear

the burden of establishing eligibility, all beneficiaries are treated

as presumptively ineligible, regardless of their country of origin,

and all petitioners are given an opportunity to rebut that pre-

sumption through the production of evidence. See 8 C.F.R. §

103.2(b)(1). In adjudicating Form I-130 petitions, USCIS is au-

thorized by regulation to request original documentation, take

testimony, direct investigation, and request additional evidence

in order to determine eligibility. See 8 CFR §§ 103.2(b)(5), (7),

(8). USCIS also retains the “sole discretion” to determine “what

evidence is credible and the weight to be given that evidence.”

Id. § 204.1(f)(1). Thus, contrary to Plaintiffs’ argument, the pro-

cedures and policies set forth in the Yemen Guidance appear to

be consistent with USCIS’s legal authority and in accordance with

law.

2. Section 706(2)(D)

Plaintiffs also contend that that the court may set aside the

Yemen Guidance on the ground that it is “without observance of

procedure required by law.” 5 U.S.C. § 706(2)(D). Under the

APA, an agency generally must use notice-and-comment proce-

dures to make any “rule.” 5 U.S.C. § 553. The APA exempts from

this requirement, however, “general statements of policy,”

among other types of agency action that are sometimes collec-

tively referred to as “non-legislative rules.” Id. § 553(b)(A); Nat’l

Mining Ass’n v. McCarthy, 758 F.3d 243, 251 (D.C. Cir. 2014)

(“The APA divides agency action, as relevant here, into three

boxes: legislative rules, interpretive rules, and general statements

of policy. … Legislative rules generally require notice and com-

ment, but interpretive rules and general statements of policy do

not.”). “If an agency engages in rule-making without the notice

and comment Section 553 requires, the rule-making is subject to

vacatur under Section 706(2)(D) on the ground that it was is-

sued ‘without observance of procedure required by law.’” Nat.

Res. Def. Council, Inc. v. U.S. Dep't of the Interior, 397 F. Supp. 3d

430, 452 (S.D.N.Y. 2019); 5 U.S.C. § 706(2)(D).

Distinguishing between legislative rules, interpretive rules, and

general statements of policy “turns out to be quite difficult and

confused.” McCarthy, 758 F.3d at 251. There are, however, gen-

eral principles to guide the court’s inquiry. If a rule alters the

rights or obligations of regulated parties “or produces other sig-

nificant effects on private interests,” it is legislative and therefore

must be adopted via notice-and-comment rulemaking.4 White v.

Shalala, 7 F.3d 296, 303 (2d Cir. 1993) (citation omitted); see

also Chrysler Corp. v. Brown, 441 U.S. 281, 302, (1979) (legisla-

tive rules “affect[] individual rights and obligations” (citation

omitted)); Lewis–Mota v. Sec'y of Labor, 469 F.2d 478, 482 (2d

Cir. 1972). By contrast, a rule that “educat[es] . . . agency mem-

bers in the agency’s work” or is “directed primarily at the staff of

an agency describing how it will conduct agency discretionary

functions” is considered a general policy statement. Noel v. Chap-

man, 508 F.2d 1023, 1030 (2d Cir. 1975); see also McCarthy, 758

F.3d at 252 (“An agency action that merely explains how the

agency will enforce a statute or regulation—in other words, how

4 A legislative rule can also be exempted from the notice-and-comment

process if “the agency for good cause finds . . . that notice and public pro-

cedure thereon are impracticable, unnecessary, or contrary to the public

interest.” 5 U.S.C. § 553(b)(B).

it will exercise its broad enforcement discretion or permitting dis-

cretion under some extant statute or rule—is a general statement

of policy.”).

The Yemen Guidance is expressly framed as a policy memoran-

dum, the purpose of which is to “provide guidance to USCIS

Officers who adjudicate family-based petitions supported by

Yemeni relationship documents.” (AR at 001.) Plaintiffs offer no

argument as to why the court should deem the Yemen Guidance

a rule, subject to the procedural requirements of rulemaking, ra-

ther than a statement of policy, and the court sees no basis on

which to reach such a conclusion. Because the Yemen Guidance

is clearly a policy statement that explains how the agency will

exercise its discretion, rather than a rule that alters regulated par-

ties’ rights and obligations, Defendants did not act “without

observance of procedure required by law” by issuing it.

3. Section 706(1)

Plaintiffs ask the court to compel Defendants to adjudicate their

petitions, which they allege have been unreasonably delayed.

The APA provides that “within a reasonable time, each agency

shall proceed to conclude a matter presented to it.” 5 U.S.C. §

555(b). It also requires that courts shall “compel agency action

unlawfully withheld or unreasonably delayed.” Id. § 706(1). A

claim asserting unreasonable delay “can proceed only where a

plaintiff asserts that an agency failed to take a discrete agency ac-

tion that it is required to take.” Norton v. S. Utah Wilderness All.,

542 U.S. 55, 64 (2004) (emphasis in original).

The court’s analysis of Plaintiffs’ unreasonable delay APA claim

differs for two groups of Plaintiffs: those whose petitions have

already been adjudicated, and those whose petitions remain

pending.

a. Plaintiffs Whose Form I-130 Petitions Have Been Ad-

judicated

Defendants argue that Plaintiffs’ APA claim for unreasonable de-

lay is moot with respect to those Plaintiffs whose Form I-130

petitions have already been adjudicated—a group that comprises

the majority of the Plaintiffs in this case. “Under the doctrine of

mootness, the plaintiff’s personal stake in the outcome of the lit-

igation must be extant at all stage of review, not merely at the

time the complaint is filed.” Stagg P.C. v. U.S. Dep’t of State, 983

F.3d 589, 601 (2d Cir. 2020). “When the plaintiff no longer has

a legally cognizable interest in the outcome of the action, the case

becomes moot and is no longer a ‘case’ or ‘controversy’ for the

purposes of Article III.” Id. “Under Article III of the U.S. Constitu-

tion, when a case becomes moot, the federal courts lack subject

matter jurisdiction over the action.” Doyle v. Midland Credit

Mgmt., Inc., 722 F.3d 78, 80 (2d Cir. 2013).

The Second Circuit has explained that “if an event occurs while

a case is pending on appeal that makes it impossible for the court

to grant any effectual relief whatever to a prevailing party, [the

court] must dismiss the case” as moot “rather than issue an advi-

sory opinion.” ABC, Inc. v. Stewart, 360 F.3d 90, 97 (2d Cir.

2004); see also Barrett v. United States, 105 F.3d 793, 794 (2d

Cir. 1996). This court has specifically held that when a plaintiff

asks the court to compel USCIS to adjudicate an application that

is no longer pending at the time of the court’s review, that claim

is moot and USCIS’s adjudication of the application divests the

court of subject matter jurisdiction. See Song v. Sessions, 17-cv-

1682 (NGG), 2018 WL 5084843, at *2 (E.D.N.Y. Oct. 18, 2018).

Plaintiffs do not contest that most of the Form I-130 petitions at

issue in this case have already been adjudicated. However, they

argue that the court may nonetheless exercise jurisdiction over

their unreasonable delay claim because either of two exceptions

to the mootness doctrine applies. (Opp. at 15-19.) First, they ar-

gue that their claims regarding already adjudicated petitions are

not moot because they are “capable of repetition yet evading re-

view.” (Id. at 15-18.) Second, they argue that those claims are

not moot because Defendants’ adjudication of the petitions

amounts to a voluntary cessation of the challenged practice. (Id.

at 18-19.) Both of Plaintiffs’ arguments are unavailing.

An established “exception to the mootness doctrine applies

where (1) the challenged action is in its duration too short to be

fully litigated prior to cessation or expiration, and (2) there is a

reasonable expectation that the complaining party will be subject

to the same action again.” In re Grand Jury Proceeding, 971 F.3d

40, 53 (2d Cir. 2020). Plaintiffs argue that both criteria are met

because the relevant petitions were adjudicated before Plaintiffs’

claims could be fully litigated and because the Petitioner-Plain-

tiffs could conceivably bring subsequent Form I-130 petitions on

behalf of other family members from Yemen. (Opp. at 16-17.) As

Defendants point out, there is some irony to Plaintiffs’ argument

that USCIS adjudicated their petitions too quickly for them to

fully litigate their claims that USCIS was adjudicating their peti-

tions too slowly. But litigation is often lengthy, and it is feasible

that the time to adjudicate an immigration application, in certain

contexts, could be so long as to constitute an unreasonable delay

but still sufficiently brief to evade judicial review.

The bigger problem for Plaintiffs is the “capable of repetition”

aspect of the exception. Although it is true that U.S. citizens and

LPRs may bring multiple Form I-130 petitions on behalf of differ-

ent qualifying family members, Plaintiffs fail to establish that

there is a reasonable expectation that these specific individuals

will bring subsequent Form I-130 petitions on behalf of addi-

tional qualifying family members, and further that USCIS will fail

to timely adjudicate such petitions in the same manner alleged

here. As the First Circuit has explained, in holding that plaintiffs’

challenge to practices for adjudicating “immediate relative” visa

petitions was moot, “[u]nlike pregnant women who are likely to

conceive again or [children with disabilities] who are virtually

certain to require placement in successive school years, the plain-

tiffs have not shown … that they have any prospect of seeking

the same relief anew…. [T]he plaintiffs cannot credibly argue

that they are likely to be exposed fresh to the same sort of bu-

reaucratic gridlock that drove them to the courthouse door on

this occasion.” Cruz v. Farquharson, 252 F.3d 530, 534-35 (1st

Cir. 2001) (citing Roe v. Wade, 410 U.S. 113, 125 (1973) and

Caroline T. v. Hudson Sch. Dist., 915 F.2d 752, 757 (1st Cir.

1990)). Where, as here, Plaintiffs merely demonstrate the possi-

bility of repetition, rather than its probability, they fail to

establish the kind of exceptional situation that renders the moot-

ness doctrine inappropriate.

Plaintiffs also argue that the other recognized exception to the

mootness doctrine, the “voluntary cessation” exception, applies.

“It is well settled that a defendant’s voluntary cessation of a chal-

lenged practice does not deprive a federal court of its power to

determine the legality of the practice.” Friends of the Earth, Inc.

v. Laidlaw Environ. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000).

If the court were to dismiss a case as moot under such circum-

stances, it “would permit a resumption of the challenged conduct

as soon as the case was dismissed.” Am. Freedom Def. Initiative v.

Metro. Trans. Auth., 815 F.3d 105, 109 (2d Cir. 2016). When the

alleged basis for mootness is the defendant’s voluntary cessation,

the case will be deemed moot only “if subsequent events made it

absolutely clear that the allegedly wrongful behavior could not

reasonably be expected to recur” after the conclusion of litiga-

tion. Friends of the Earth, 528 U.S. at 189.

Plaintiffs argue that Defendants have adjudicated their petitions

in order to evade judicial review of their challenged conduct, and

they suggest that such adjudication amounts to a voluntary ces-

sation. But by adjudicating Plaintiffs’ petitions, Defendants have

not thwarted Plaintiffs ability to obtain relief; rather, they have

provided Plaintiffs with the very relief they seek to compel

through litigation. Defendants’ adjudication of Plaintiffs’ peti-

tions is final (assuming that no evidence of fraud subsequently

emerges), and thus they cannot resume the challenged con-

duct—unreasonable delays in adjudicating Plaintiffs’ petitions—

upon the conclusion of this litigation. Accordingly, the voluntary

cessation exception to mootness is inapposite.

Because those Plaintiffs whose petitions have already been adju-

dicated lack a legally cognizable interest in the outcome of their

unreasonable delay claims, and because neither of the estab-

lished exceptions to the mootness doctrine applies, the court

finds that Plaintiffs’ claims under Section 706(1) of the APA are

moot with respect to this group of Plaintiffs.

b. Plaintiffs Whose Form I-130 Petitions Have Not Been

Adjudicated

The court does have jurisdiction over the unreasonable delay

claims brought by the comparatively small group of Plaintiffs

whose petitions have not yet been adjudicated—approximately

nineteen individuals, who raise claims in connection with ap-

proximately nine pending petitions, as of the date Defendants

filed their Reply Brief, and perhaps a smaller group now.5

Again, “aclaim 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, 542 U.S. at 64. Courts evaluate

APA claims that agencies have unreasonably delayed in adjudi-

cating plaintiffs’ pending administrative matters by applying a

5 See App’x II to Houghton Decl. (Dkt. 66-2) at ECF pp. 12-13; Reply at 13-

14.

six-part standard set forth in Telecommunications Research & Ac-

tion Center v. FCC (“TRAC”), 750 F.2d 70 (D.C. Cir. 1984). Under

that standard:

(1) the time agencies take to make decisions must be gov-

erned by a “rule of reason”; (2) where Congress has provided

a timetable or other indication of the speed with which it

expects the agency to proceed in the enabling statute, that

statutory scheme may supply content for this rule of reason;

(3) delays that might be reasonable in the sphere of eco-

nomic regulation are less tolerable when human health and

welfare are at stake; (4) the court should consider the effect

of expediting delayed action on agency activities of a higher

or competing priority; (5) the court should also take into ac-

count the nature and extent of the interests prejudiced by

delay; and (6) the court need not find any impropriety lurk-

ing behind agency lassitude in order to hold that agency

action is unreasonably delayed.

TRAC, 750 F.2d at 80.

“In applying the ‘competing priority’ TRAC factor, the D.C. Circuit

has held that it is appropriate to refuse to grant relief, even

though all the other factors considered in TRAC favor it, where a

judicial order putting the petitioner at the head of the queue

would simply move all others back one space and produce no net

gain.” Yan Chen v. Nielsen, No. 17-CV-7157 (BMC), 2018 WL

1221130, at *2 (E.D.N.Y. Mar. 8, 2018) (citing Mashpee Wampa-

noag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1100 (D.C.

Cir. 2003)). In such contexts, courts recognize that agencies must

“juggle competing duties” and as a result they will generally not

find a Section 706(1) violation in the absence of “evidence the

agency … treated the petitioner[s] differently from anyone else,

or that officials not working on [plaintiffs’] matters were just

twiddling their thumbs.” Mashpee Wampanoag Tribal Council,

336 F.3d at 1100-01. “[T]he competing priority issue is weighty”

where “[t]here are many other applicants who have waited even

longer than” the plaintiffs and “to grant [them] priority is to push

[other applicants] further back in line when the only difference

between them is that [the plaintiffs have] brought a federal law-

suit.” Yan Chen, 2018 WL 1121130, at *2.

As such, courts in this circuit have repeatedly found that delays

of as long as five years in USCIS’s adjudication of immigration

benefits are not unreasonable. See id. (“[T]he mere delay of

roughly four and a half years is an inadequate ground to grant

either mandamus or APA relief.”); Hoo Loo v. Ridge, No. 04-cv-

5553 (DLI), 2007 WL 813000, at *4 (E.D.N.Y. Mar. 14, 2007)

(concluding that delay of over four years was not unreasonable);

Saleh v. Ridge, 367 F. Supp. 2d 508, 513 (S.D.N.Y. 2005) (finding

delay of almost five years, while “not insubstantial,” was not un-

reasonable “in light of the volume of applications … in the

system” and limits on how many applications could be granted).

They have also denied unreasonable delay claims where, “apart

from the passage of time, [Plaintiffs] … give[] no reason for the

[c]ourt to compel [USCIS] to devote immediate attention” to

their applications, “particularly given [USCIS’s] limited resources

and substantial caseload.” Espin v. Gantner, 381 F. Supp. 2d 261,

266 (S.D.N.Y. 2005).

Of the pending applications, none appears to have been filed ear-

lier than July 11, 2016. (See Am. Compl. ¶¶ 186, 204, 246, 359,

401, 419, 425; App’x II to Houghton Decl. (Dkt. 66-2) at ECF pp.

12-13.)6 Thus, these applications have all been pending for fewer

6 The petition filed by Plaintiff Ahmed Shariff on behalf of Plaintiff Mo-

hammed Shariff was allegedly filed in May 2006, but Defendants state—

and Plaintiffs do not dispute—that the petition was approved in 2007 but

reopened in 2017 through the “consular return” process, which allows for

the re-adjudication and possible revocation of approved petitions when

new information casting doubt on eligibility comes to light. (See Am.

Compl. ¶ 228; App’x II to Houghton Decl. (Dkt. 66-2) at ECF p. 13; Mem.

than five years, and had been pending for fewer than two years

when Plaintiffs filed this action. Other than the passage of time,

Plaintiffs have given the court no basis on which to conclude that

the process of adjudicating their petitions has been unreasonably

prolonged or delayed. Moreover, the competing priority factor

weighs strongly against relief that would permit Plaintiffs to cir-

cumvent the line and receive final decisions sooner than other

Form I-130 applicants who are similarly awaiting adjudication of

their petitions. Accordingly, the court grants summary judgment

for Defendants’ on Plaintiffs’ APA unreasonable delay claims, in-

sofar as the court has jurisdiction to review those claims.

B. Mandamus Claim

Plaintiffs petition this court for a writ of mandamus compelling

Defendants to “properly adjudicate in good faith” their Form I-

130 petitions. (Am. Compl. ¶¶ 512-20.) Plaintiffs’ mandamus

claims seek the same relief as their unreasonable delay claims

under the APA: a judicial order directing Defendants to immedi-

ately adjudicate Plaintiffs’ petitions. Thus, as with the

unreasonable delay claims, the court’s analysis of the mandamus

claims is bifurcated according to the status of Plaintiffs’ petitions.

First, as to Plaintiffs who seek the adjudication of petitions that

USCIS has already adjudicated, the court cannot order an agency

to take an action that it has already taken. See Lihua Jiang v. Clin-

ton, No. 08-cv-4477 (NGG), 2011 WL 5983353, at *3 (E.D.N.Y.

Nov. 28, 2011) (“Defendants discharged any non-discretionary

duty they may have owed to Plaintiff…. Plaintiff’s claim is thus

moot insofar as it seeks a writ of mandamus to order Defendants

to perform duties they have already performed.”) The court

therefore finds that Plaintiffs’ mandamus claims are moot for the

reasons explained above. Because the court lacks jurisdiction to

at 9, 18, 26.) Thus, Mr. Shariff’s petition has been pending only since 2017,

not since 2006.

review a non-justiciable controversy, it dismisses Plaintiffs’ man-

damus claims for lack of subject matter jurisdiction.

Second, as to the remaining Plaintiffs who are awaiting a final

resolution of their Form I-130 petitions, Plaintiffs fail to state an

actionable claim for a writ of mandamus. Under the Mandamus

Act, “[t]he district courts shall have original jurisdiction of any

action in the nature of mandamus to compel an officer or em-

ployee of the United States or any agency thereof to perform a

duty owed to the plaintiff.” 28 U.S.C. § 1361. “The action that

the plaintiff seeks to compel must be subject to positive com-

mand, plainly described, and free from doubt.” Keane v. Chertoff,

419 F. Supp. 2d 597, 599 (S.D.N.Y. 2006). To obtain mandamus

relief, a plaintiff must show that “(1) there is a clear right to the

relief sought; (2) the Government has a plainly defined and per-

emptory duty to perform the act in question; and (3) there is no

other adequate remedy available.” Benzman v. Whitman, 523

F.3d 119, 133 (2d Cir. 2008). “The extraordinary remedy of

mandamus under 28 U.S.C. § 1361 will issue only to compel the

performance of a clear nondiscretionary duty.” Pittston Coal Grp.

v. Sebben, 488 U.S. 105, 121 (1988).

Defendants clearly have a non-discretionary duty to adjudicate

Plaintiffs’ Form I-130 petitions at some point in time, but they

have no “plainly defined and peremptory duty” to adjudicate

them within any particular time frame. Thus, “Plaintiff[s] do[]

not have a clear right to an immediate adjudication before all of

the required background checks have been completed, nor is

there a statutory or regulatory right to adjudication within a spec-

ified time,” and “[D]efendants have no clear duty to increase the

pace at which they are acting.” Orlov v. Howard, 523 F. Supp. 2d

30, 38 (D.D.C. 2007). Moreover, Plaintiffs’ mandamus claims are

duplicative of their APA unreasonable delay claims: in the event

that Plaintiffs did have a clear right to an immediate adjudication

and Defendants did have a clear duty to adjudicate within a spec-

ified time frame, Section 706(1) of the APA would provide

Plaintiffs with an adequate remedy. Because Plaintiffs cannot es-

tablish any, let alone all, of the essential prerequisites for a writ

of mandamus, they fail to state a claim for relief.

C. Declaratory Judgment

Plaintiffs bring a claim under the Declaratory Judgment Act, 28

U.S.C. § 2201, seeking “a declaration … [that] Defendants have

severally and jointly failed to discharge their mandated official

duties” and “finding Defendants’ Yemeni I-130 [a]djudication

procedures discriminatory and contrary to law.” (Am. Compl. ¶¶

533-34.)

“By the Declaratory Judgment Act, Congress sought to place a

remedial arrow in the district court’s quiver; it created an oppor-

tunity, rather than a duty, to grant a new form of relief to

qualifying litigants.” Wilton v. Seven Falls Co., 515 U.S. 277, 288

(1995). “Consistent with the nonobligatory nature of the remedy,

a district court is authorized, in the sound exercise of its discre-

tion, to stay or to dismiss an action seeking a declaratory

judgment before trial or after all arguments have drawn to a

close.” Id. The Declaratory Judgment Act is not a “source of sub-

stantive rights.” Dow Jones & Co. v. Harrods, Ltd., 237 F. Supp. 2d

394, 431 (S.D.N.Y. 2002). “Nor does the statute impose any duty

upon the courts to grant this remedy.” Ahmed v. Cissna, 327 F.

Supp. 3d 650, 672 (S.D.N.Y. 2018), aff'd sub nom. Ahmed v.

Cuccinelli, 792 F. App'x 908 (2d Cir. 2020).

As explained above, Plaintiffs have not provided the court with a

sound basis to conclude that Defendants have failed to discharge

any nondiscretionary official duties or that the Yemen Guidance

is discriminatory or unlawful. Accordingly, the court rejects

Plaintiffs’ request for a declaration to that effect and dismisses

Plaintiffs’ declaratory judgment action for failure to state a claim

for relief.

D. Constitutional Claims

Plaintiffs’ Amended Complaint raises four causes of action alleg-

ing the violation of Plaintiffs’ constitutional rights. First, Plaintiffs

allege that Defendants’ delay in adjudicating their petitions de-

prives them of a liberty interest “in making personal choices

regarding family matters” that is protected by the Due Process

Clause of the Fifth Amendment. (Am. Compl. ¶¶ 536-39.) Sec-

ond, Plaintiffs allege that Defendants have infringed on their

procedural due process rights under the Fifth Amendment. (Id.

¶¶ 540-44.) Third, Plaintiffs allege that Defendants violated their

rights to Equal Protection under the Fifth Amendment by dis-

criminating against them on the basis of their “Yemen ethnicity

and Islamic faith.” (Id. ¶¶ 545-52.) Fourth, Plaintiffs allege that

Defendants violated the Establishment Clause of the First

Amendment by “preferring one religion over another.” (Id. ¶¶

553-59.) As explained below, the court finds that Plaintiffs fail to

state a cause of action for a constitutional violation under any of

these theories.

1. Substantive Due Process Claim

Plaintiffs assert that the alleged delays in adjudicating their peti-

tions have impermissibly infringed on their constitutionally

“protected liberty interest to family integrity and privacy” by pre-

venting close family members from living together, insofar as

they are eligible to do so under U.S. immigration laws. (Opp. at

12-15.)

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 only when fundamental

rights are involved,” whereas “[t]he impairment of a lesser inter-

est … demands no more than a ‘reasonable fit’ between

governmental purpose … and the means chosen to advance” it.

Id. at 305.

Plaintiffs’ argument invokes certain recognized constitutional

rights pertaining to familial unity and integrity, including the

right to marriage, and suggests that the right to cohabitate with

one’s family is a logical extension of those rights. (Opp. at 12-

14.) But Plaintiffs point to no case law at all, let alone case law

binding on this court, that recognizes a fundamental constitu-

tional right to cohabitate with one’s family members within the

United States. Rather, as the Ninth Circuit has explained, the the-

ory 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). Plaintiffs’ “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”). Because the

interest in familial unity that Plaintiffs invoke is not one that has

been recognized as fundamental under the U.S. Constitution,

and because the time taken by USCIS to adjudicate Form I-130

petitions, including those of petitioners, bears a clear relationship

to the need for USCIS to correctly determine beneficiaries’ visa

eligibility while conserving public resources, Plaintiffs have failed

to state a cause of action for the deprivation of their substantive

due process rights.

2. Procedural Due Process Claim

Plaintiffs also allege that Defendants violated their Fifth Amend-

ment rights to procedural due process, on the theory that USCIS’s

policies and procedures for adjudicating Plaintiffs’ Yemeni Form

I-130 applications are “nothing more than an exercise in futility”

that prevents eligible Plaintiffs from being able to obtain visas to

which they are entitled. (Opp. at 11-12.)

“Due process is flexible and calls for such procedural protections

as the particular situation demands.” Mathews v. Eldridge, 424

U.S. 319, 334 (1976). “Due process requires that an individual

be given notice and an opportunity to be heard prior to the state’s

permanent deprivation of his property interest.” Chunn v.

Amtrak, 916 F.3d 204, 207 (2d Cir. 2019). “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 entitle-

ment if government officials may grant or deny it in their

discretion.” Town of Castle Rock v. Gonzales, 545 U.S. 748, 756

(2005).

At least one circuit court has found that the “grant of an I-130

petition for immediate relative status is a nondiscretionary deci-

sion” 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). But even if Plaintiffs have a protected interest in the

grant of their Form I-130 petitions, assuming that they carry their

burden of establishing eligibility by a preponderance of the evi-

dence, there is no basis for their assertion that Defendants have

deprived them of that interest. Their argument is not that their

applications have been erroneously denied, but rather that they

are “not able to avail themselves” of the benefits to which they

are entitled because of USCIS’s unreasonable delays in adjudicat-

ing their petitions. (Opp. at 11-12.)

The premise of Plaintiffs’ argument is belied by the undisputed

fact that most of Plaintiffs’ petitions have been adjudicated, and

that most of those petitions were in fact adjudicated favorably.

Thus, insofar as Plaintiffs attempt to claim that Defendants con-

sistently or regularly deprive Yemeni beneficiaries and their

petitioning family members of due process without law in adju-

dicating Form I-130 petitions, that claim is devoid of factual

support. Nor has any specific subset of Plaintiffs pleaded facts

sufficient to support a procedural due process claim. Those Plain-

tiffs whose applications have been approved have received the

benefit to which they are entitled, and they have therefore suf-

fered no deprivation. Those whose petitions were denied have

not plausibly alleged that those denials were erroneous, and

therefore the court has no basis to conclude that they were enti-

tled to the benefits they sought. The handful of Plaintiffs whose

petitions remain pending have failed to adequately allege either

that they are entitled to the grant of those petitions or that the

mere pendency of their petitions constitutes a deprivation of that

benefit. Plaintiffs therefore fail to state a claim for violation of

procedural due process.

3. Equal Protection Claim

Plaintiffs contend that the Defendants’ policies and practices for

adjudicating Form I-130 petitions on behalf of Yemeni beneficiar-

ies violate their rights to equal protection under the Fifth

Amendment by discriminating against Plaintiffs on the basis of

protected characteristics such as race, national origin, and reli-

gion. (Am. Compl. ¶¶ 547-49; Opp. at 8.)

While the Fifth Amendment does not contain an equal protection

clause, “it does forbid discrimination that is so unjustifiable as to

be violative of due process.” Sessions v. Morales-Santana, 137 S.

Ct. 1678, 1686, n.1 (2017) (quoting Weinberger v. Wiesenfeld,

420 U.S. 636, 638, n. 2 (1975)). The Supreme Court's approach

to Fifth Amendment equal protection claims is “precisely the

same as to equal protection claims under the Fourteenth Amend-

ment.” Id. For Plaintiffs to successfully plead a Fifth Amendment

claim for discrimination, they must allege facts containing one of

the following three elements: “(1) that a law or policy is discrim-

inatory on its face; (2) that a facially neutral law or policy has

been applied in an intentionally discriminatory manner; or (3)

that a facially neutral statute or policy has an adverse effect and

that it was motivated by discriminatory animus.” Alharbi v. Mil-

ler, 368 F. Supp. 3d 527, 563 (E.D.N.Y. 2019).

Plaintiffs do not allege that the Yemen Guidance is facially dis-

criminatory; rather, they suggest that Plaintiffs were subjected to

an unduly rigorous and lengthy adjudication process because of

“animus and impermissible discriminatory motives.” (Opp. at 8.)

But Plaintiffs’ only specific factual allegations of animus or inten-

tional discrimination evoke Islamophobic rhetoric in statements

and actions attributable to former President Trump and his ad-

ministration. (Am. Compl. ¶¶ 484-95.) Those statements and

actions do not specifically relate to the Yemen Guidance or the

adjudication of Form I-130 petitions. Moreover, USCIS issued

and implemented the Yemen Guidance in 2012, during the ad-

ministration of former President Barack Obama and prior to any

of the statements and actions that allegedly support Plaintiffs’

claims of discriminatory animus. Plaintiffs fail to suggest any

plausible factual nexus between the alleged discriminatory mo-

tives of the individual Trump administration Defendants and the

challenged policy, which was implemented during the prior pres-

idential administration. Plaintiffs therefore fail to state a claim

for discrimination in violation of the Fifth Amendment.7

4. Establishment Clause Challenge

Plaintiffs claim that Defendants have violated the Establishment

Clause of the First Amendment by subjecting Form I-130 peti-

tions brought by and on behalf of Muslim individuals to higher

burdens of proof than those petitions brought by or on behalf of

non-Muslims. “[A]lthough foreign nationals seeking admission

have no constitutional right to entry, [the Supreme] Court has

engaged in a circumscribed judicial inquiry when the denial of a

visa allegedly burdens the constitutional rights of a U.S. citizen.”

Trump v. Hawaii, 138 S. Ct. 2392, 2420 (2018). In such cases,

courts apply rational basis review and “will uphold the policy so

long as it can reasonably be understood to result from a justifica-

tion independent of unconstitutional grounds.” Id.

As discussed above, Plaintiffs’ argument that their petitions were

held to a more rigorous burden of proof than other Form I-130

petitions misconstrues the effect of the Yemen Guidance, which

requires Plaintiffs to supply more evidentiary support than cer-

tain other Form I-130 petitioners but does not impose upon

Plaintiffs a higher burden of proof. To the extent that Form I-130

petitions on behalf of Yemeni beneficiaries are adjudicated dif-

ferently than petitions on behalf of beneficiaries from other

countries, Defendants have articulated a logical justification

grounded in the unreliability of Yemen’s official processes for

7 To the extent Plaintiffs allege discrimination against Defendants in their

individual capacities, under a Bivens theory, they also fail to state a claim

for relief. (See Am. Compl. ¶¶ 550-51.) Plaintiffs do not even allege that

any of the Defendants were personally involved, in any manner, in the de-

velopment of the Yemen Guidance or the adjudication of their Form I-130

petitions.

maintaining and issuing civil records. That justification is unre-

lated to matters of religious faith or affiliation, and it provides a

rational explanation for the challenged policies and practices. Ac-

cordingly, Plaintiffs fail to state a claim under the Establishment

Clause of the First Amendment.

E. Conspiracy to Deprive of Civil Rights

Plaintiffs bring a claim under 42 U.S.C. § 1985(3), which creates

a right of action against persons who “conspire … for the purpose

of depriving, either directly or indirectly, any person or class of

persons of the equal protection of the laws, or of equal privileges

and immunities under the laws.” Plaintiffs allege that Defendants

conspired to “devise[] a discriminatory Form I-130 adjudicative

program for petitioners and/or beneficiaries of Arab/Yemen

background,” for the purpose of depriving such petitioners and

beneficiaries of equal protection. (Am. Compl. ¶ 563.) They cite,

as factual support for their claim, a series of Islamophobic state-

ments by former President Trump and policies implemented by

his administration.

Plaintiffs do not specify whether they assert this claim against

Defendants in their official or individual capacities. Insofar as

Plaintiffs seek to recover against Defendants in their official ca-

pacities, the claim is barred by sovereign immunity. See Haynes

v. Quality Markets, 307 F. App’x 473, 475 (2d Cir. 2008) (affirm-

ing dismissal of § 1985 claim for which “the United States has

not waived sovereign immunity”). The court therefore construes

Plaintiffs’ claim as one brought against Defendants in their indi-

vidual capacities. But Plaintiffs fail to allege any facts to suggest

that Defendants were personally involved with developing the

Yemen Guidance or other relevant policies and practices. As

noted above, the Yemen Guidance was developed and imple-

mented prior to former President Trump’s tenure, and Plaintiffs

fail to allege any plausible nexus between that adjudication pro-

gram and the Defendants’ subsequent Islamophobic remarks and

policies. Plaintiffs therefore fail to state a claim for conspiracy to

deprive them of their civil rights.

F. FRCP 72 Appeal

Finally, Plaintiffs ask this court to reverse Judge Pollak’s March

17, 2020 order denying Plaintiffs’ motion for additional discov-

ery. Plaintiffs previously moved for reconsideration of Judge

Pollak’s order. (See Mot. for Recons..) Judge Pollak denied the

reconsideration motion on November 24, 2020. (See Reconsider-

ation M&O.) On January 8, 2021, Plaintiffs filed a motion with

this court, styled as an appeal from Judge Pollak’s order denying

additional discovery pursuant to Federal Rule of Civil Procedure

72(a) and 28 U.S.C. § 636(b)(1).

Under 28 U.S.C. § 636(b)(1)(a), the court may “reconsider any

pretrial matter” decided by a magistrate judge “where it has been

shown that the magistrate judge’s order is clearly erroneous or

contrary to law.” Federal Rule of Civil Procedure 72(a) provides

that parties must object to a magistrate judge’s order regarding a

non-dispositive pretrial matter within fourteen days, and that

“[t]he district judge in the case must consider timely objections”

under the “clearly erroneous or … contrary to law” standard.

Plaintiffs style their motion as an appeal from Judge Pollak’s

March 17, 2020 order denying their discovery motion, rather

than as an appeal from Judge Pollak’s November 24, 2020 order

denying their reconsideration motion. The parties dispute

whether Plaintiffs’ appeal is timely: Defendants argue that under

Rule 72(a) Plaintiffs’ window to object to the March 17, 2020

order expired fourteen days after it was issued, while Plaintiffs

contend that their motion for reconsideration effectively tolled

the March 17, 2020 order by rendering it non-final. (Appeal Opp.

at 3-4; Appeal Reply at 2-4.)

Because this order grants in full Defendants’ motion for dismissal

and summary judgment, all claims raised in Plaintiffs’ Amended

Complaint are hereby disposed of, and no further discovery will

occur in this case regardless of the timeliness and merits of Plain-

tiffs’ Rule 72 appeal. Accordingly, the court denies Plaintiffs’

appeal of Judge Pollak’s order as moot.

IV. CONCLUSION

For the reasons set forth above, the court:

• dismisses Plaintiffs’ Mandamus Act and APA unreasona-

ble delay claims for lack of subject matter jurisdiction,

pursuant to Federal Rule of Civil Procedure 12(b)(1), in-

sofar as they pertain to Plaintiffs whose Form I-130

petitions have already been adjudicated;

• grants summary judgment to Defendants on all remaining

APA claims, pursuant to Federal Rule of Civil Procedure

56; and

• dismisses the remaining Plaintiffs’ Mandamus Act claims

and all Plaintiffs’ claims under the Fifth Amendment, First

Amendment, Declaratory Judgment Act, and 42 U.S.C. §

1985 for failure to state a claim, pursuant to Federal Rule

of Civil Procedure 12(b)(6).

Accordingly, Defendants’ (Dkt. 66) Motion for Summary Judg-

ment and Motion to Dismiss is GRANTED with prejudice.

Additionally, Plaintiffs’ (Dkt. 86) Appeal of Judge Pollak’s orders

regarding discovery is DENIED as moot. The Clerk of Court is

respectfully directed to close the case.

SO ORDERED.

Dated: Brooklyn, New York

March 16, 2021

_/s/ Nicholas G. Garaufis_

NICHOLAS G. GARAUFIS

United States District Judge