Abdul Baaghil v. Stephen Miller

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 21a0134p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ABDUL KADER AHMED BAAGHIL, ┐

Plaintiff, │

│

│

KHALED ABDO ALI AHMED; MALEKAH ALI AL │

WAHASI; AKRAM KHALED ABDO ALI AHMED; > No. 20-1802

MOHAMED ABDO ALI AHMED, │

Plaintiffs-Appellants, │

│

│

v. │

│

STEPHEN MILLER, et al., │

│

Defendants,

│

│

MERRICK B. GARLAND, Attorney General, ANTONY │

BLINKEN, Secretary of State, and TRACY RENAUD, │

Acting Director of United States Citizenship and │

Immigration Services, in their official capacities; │

UNITED STATES CUSTOMS AND BORDER PROTECTION, │

Defendants-Appellees. │

┘

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:19-cv-11138—David M. Lawson, District Judge.

Decided and Filed: June 14, 2021

Before: SUTTON, Chief Judge; DAUGHTREY and GRIFFIN, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Julie A. Goldberg, GOLDBERG & ASSOCIATES, Bronx, New York, for

Appellants. Joshua S. Press, UNITED STATES DEPARTMENT OF JUSTICE, Washington,

D.C., for Appellees.

No. 20-1802 Baaghil, et al. v. Miller, et al. Page 2

_________________

OPINION

_________________

SUTTON, Chief Judge. Khaled Abdo Ali Ahmed, a lawful permanent resident, applied

for visas for his wife and children. A United States consulate eventually denied the applications.

Through his original complaint and his failed request to amend that complaint, Ahmed sought

relief in federal district court, urging the court to reverse the consulate’s decision on a variety of

grounds. The court declined, and we affirm.

I.

A.

The Immigration and Nationality Act requires noncitizens to obtain visas before they

enter the United States. 8 U.S.C. § 1181(a). The Act creates a special visa-application process

for a spouse or child of a lawful permanent resident. See id. § 1153(a)(2)(A). To start the

process, the lawful permanent resident must file a “Form I-130.” 8 C.F.R. § 204.1(a)(1). Once

filed, the United States Citizenship and Immigration Services determines the relative’s eligibility

for a visa. Id.; see 8 U.S.C. § 1154(a)(1)(A)(i). If the agency approves the I-130 petition, the

relative must visit a United States consulate for additional processing. Id. § 1201(a)(1). The

consulate undertakes its own investigation, which includes interviewing the family member who

requested the visa. Id. § 1202(h). The consular official must refrain from issuing the visa if the

official “knows or has reason to believe” that the applicant does not qualify. Id. § 1201(g).

If, in the course of the visa inquiry, the consular official comes to believe that

Immigration Services should not have initially approved the I-130 petition, the “consular officer

shall . . . return the petition . . . [to Immigration Services] for reconsideration.” 22 C.F.R.

§ 42.43(a). Upon return of the petition to Immigration Services, an immigration officer may,

after providing notice, “revoke the approval of” the lawful permanent resident’s I-130 petition.

8 C.F.R. § 205.2(a). That decision would end the effort to obtain visas for the permanent

resident’s family members, but it would not necessarily require the agency to revoke his status as

a lawful permanent resident.

No. 20-1802 Baaghil, et al. v. Miller, et al. Page 3

B.

In 1994, Khaled Abdo Ali Ahmed and Malekah Ali Al Wahasi allegedly were married.

Ahmed lives in the United States as a lawful permanent resident. Wahasi lives abroad as a

Yemeni citizen. Their two sons, both Yemeni citizens, currently live with their mother in

Malaysia.

In 2008, Ahmed filed an I-130 petition on behalf of his wife and sons to bring them to the

United States. The government approved the initial petition in 2011, allowing Ahmed’s family

to move ahead with their applications to join him. Ahmed’s wife and children visited the U.S.

consulate in Yemen to apply for the visas. Over the next few years, U.S. consulate officers

interviewed the family several times, first in Yemen and later in Malaysia, where the family

moved in 2016.

Consular officials grew suspicious that the family members were not who they said they

were. They found a different name for Ahmed on file, noting that he went by “Hameedi” at

some point. Apprehensive officals requested additional proof of identification. While the family

gathered additional evidence, the consulate placed the applications into “administrative

processing.” R.55-2 at 2–4.

In 2017, President Trump issued Presidential Proclamation 9645. See 82 Fed. Reg.

45161. The executive order made it more difficult for Yemeni nationals to receive visas to enter

the United States.

Soon after, Ahmed and his family joined a lawsuit, spearheaded by Abdul Kader Ahmed

Baaghil, a U.S. citizen seeking to bring his family from Yemen to the United States, that

challenged the validity of the Proclamation and the way in which the government handled their

visas. In addition to challenging Proclamation 9645, they sought a writ of mandamus ordering

the consulate to immediately resolve their visa applications. The government moved to dismiss

the complaint.

Several developments altered the scope of the lawsuit. One was the U.S. Supreme

Court’s decision to uphold Proclamation 9645. See Trump v. Hawaii, 138 S. Ct. 2392, 2415

No. 20-1802 Baaghil, et al. v. Miller, et al. Page 4

(2018). In responding to the plaintiffs’ claim that the Proclamation violated the Religion Clauses

by banning certain groups on animus grounds, the Court reasoned that the Judicial Branch

generally does not review the Executive’s largely discretionary function to grant or deny visas

under guidelines established by Congress. Id. at 2418–19. Even assuming that the Constitution

restricted this executive branch policy and even assuming that rational basis review covered it,

the Court upheld the Proclamation on the ground that legitimate national security concerns

justified the visa policy. Id. at 2421.

The decision prompted a second development. Every plaintiff in today’s case, except

Ahmed and his family, either abandoned this lawsuit or was dismissed for improper joinder.

The third development came in November 2019, when the U.S. consulate in Malaysia

denied the family’s visa applications due to lingering concerns about their identities. At roughly

the same time, the consulate sent Ahmed’s I-130 petition to the U.S. Citizenship and

Immigration Services office in Vermont for “review and possible revocation”—for further

review, in other words, of whether it should continue to process the application or revoke it.

R.55-2 at 2–3.

In the aftermath of these developments, Ahmed and his family moved to amend their

complaint to challenge the visa denials and the potential revocation of Ahmed’s I-130 petition.

The court denied the request to amend as futile and dismissed the complaint.

II.

When the facts on the ground change, the nature of legal complaints in the courts

sometimes changes. After the U.S. Supreme Court’s decision to permit the President to issue

Proclamation 9645, Hawaii, 138 S. Ct. at 2415, Ahmed and his family tacked in a new direction.

Instead of challenging the validity of the Proclamation, they sought to amend their complaint to

challenge the consulate’s denial of their visa applications and the possible future revocation of

Ahmed’s status as a lawful permanent resident. Civil Rule 15(a) provides that leave to amend

should be “freely give[n] when justice so requires.” But a court may deny a motion to amend a

complaint when the amendment would be futile. See Foman v. Davis, 371 U.S. 178, 182 (1962).

If a court denies leave to amend based on futility grounds, as the district court did here, we

No. 20-1802 Baaghil, et al. v. Miller, et al. Page 5

review the decision with fresh eyes. See Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir.

2002).

Visa Denials. Visa decisions, as a general matter, fall within the domain of the

Legislative and Executive Branches—with Congress setting the terms for acceptance and denial

and the President and the Department of State exercising considerable discretion in

implementing those requirements through U.S. consulates around the world. See Kleindienst v.

Mandel, 408 U.S. 753, 754–56 (1972); see also United States ex rel. Knauff v. Shaughnessy,

338 U.S. 537, 542–43 (1950). Out of this allocation of power has sprung the doctrine of

consular non-reviewability, a no-trespass rule under which the courts rarely second guess the

decisions of consulates to deny or grant applications. As we have put the point, Congress has

“authority to set the terms upon which a person without status in the United States may procure a

visa and enter the country” as well as the “attendant prerogative” to refer “the power to welcome,

exclude, or expel individuals without lawful status to the executive branch.” Amiri v. Sec’y,

Dep’t of Homeland Sec., 818 F. App’x 523, 526 (6th Cir. 2020). This allocation of authority to

the First and Second Branches over visa applications rarely permits the Third Branch to police

the decisions. Almario v. Att’y Gen., 872 F.2d 147, 150 (6th Cir. 1989); see Yafai v. Pompeo,

912 F.3d 1018, 1020 (7th Cir. 2019); United States ex rel. London v. Phelps, 22 F.2d 288, 290

(2d Cir. 1927); United States ex rel. Ulrich v. Kellogg, 30 F.2d 984, 986 (D.C. Cir. 1929).

We say rarely because a modest exception remains. If a consulate’s decision implicates

the constitutional rights of United States citizens or lawful permanent residents, a court may

review a challenge to the application. In such circumstances, a court may review the decision

solely to determine whether the consulate provided a facially legitimate reason for its visa

decision. See Matushkina v. Nielsen, 877 F.3d 289, 294 (7th Cir. 2017); Amiri, 818 F. App’x at

527. We do not “look behind” the decision or apply further scrutiny to it. Kleindienst, 408 U.S.

at 770. Even a “statutory citation” to the pertinent restriction, without more, suffices. See

Hawaii, 138 S. Ct. at 2419; Sesay v. United States, 984 F.3d 312, 316 (4th Cir. 2021).

In applying the doctrine, we thus must distinguish between the claims filed by Ahmed’s

family and those filed by Ahmed. While each proposed claim remains futile, distinct

explanations show why.

No. 20-1802 Baaghil, et al. v. Miller, et al. Page 6

As to the claims of Ahmed’s wife and children, the doctrine of consular

non-reviewability applies in full force. We have no authority to second guess the visa decisions

of the American consulate in Yemen and thus leave those decisions in place. Hawaii, 138 S. Ct.

at 2419. “For more than a century,” the Court recently pointed out, it “has recognized that the

admission and exclusion of foreign nationals is a fundamental sovereign attribute exercised by

the Government’s political departments largely immune from judicial control.” Id. at 2418

(quotation omitted). Nor may Ahmed’s wife or children side-step this prohibition by invoking

their own federal constitutional rights. Noncitizens living abroad do not have any American

constitutional rights. Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 140 S. Ct. 2082,

2086 (2020) (“[I]t is long settled as a matter of American constitutional law that foreign citizens

outside U.S. territory do not possess rights under the U.S. Constitution.”).

As to Ahmed, the question is whether the visa denials violated his constitutional rights.

They did not. American residents—whether citizens or legal residents—do not have a

constitutional right to require the National Government to admit noncitizen family members into

the country. See Kerry v. Din, 576 U.S. 86, 96–97 (2015) (plurality opinion).

The same holds true for spouses. An American resident has no right to have his

noncitizen spouse enter or remain in the country. Almario, 872 F.2d at 151. Nothing in the

Constitution creates a right to bring a noncitizen spouse into the United States. Din, 576 U.S. at

93. Nor is the right to bring a spouse into this country “deeply rooted in this Nation’s history and

tradition” or otherwise “implicit in the concept of ordered liberty,” Washington v. Glucksberg,

521 U.S. 702, 720–21 (1997) (quotation omitted), such that we may enforce it through

substantive due process, Din, 576 U.S. at 95–96. The “long practice of regulating spousal

immigration” through the immigration laws, id. at 95, shows that Ahmed’s asserted right is

anything but “deeply rooted.” In the absence of a constitutional right to the contrary, the

consulate’s visa denials of applications by family members remain where they usually do:

outside our purview.

No. 20-1802 Baaghil, et al. v. Miller, et al. Page 7

Ahmed pushes back on several fronts.

He claims that we recognized a substantive due process right to visas for family members

in Bangura v. Hansen, 434 F.3d 487 (6th Cir. 2006). But Bangura in truth cuts the other way. It

held that the plaintiff failed to state a substantive or procedural due process claim. Id. at 495–96.

In reaching this outcome, it reasoned that discretionary visa denials do not infringe upon

constitutional rights, including the right to marry. Id. at 496; Almario, 872 F.2d at 151; see also

Oforji v. Ashcroft, 354 F.3d 609, 618 (7th Cir. 2003) (“The law is clear that citizen family

members of illegal aliens have no cognizable interest in preventing an alien’s exclusion and

deportation.”).

Nor does the two-Justice concurrence in Din advance Ahmed’s claim. A United States

citizen argued in that case that the government violated her constitutional rights when it denied

her husband’s visa application. A plurality of the Court reasoned that the denial of this visa

application did not implicate any constitutional rights because there is no substantive right to

bring a spouse into the United States. Din, 576 U.S. at 101. Although two Justices assumed for

the sake of argument that a substantive right exists, they concluded that the consulate had given a

facially legitimate reason for denying the visa and that this was the most that the Constitution

potentially required. Id. at 102 (Kennedy, J., concurring in the judgment). See generally Yafai,

912 F.3d at 1022. The Court, in short, left the substantive question for another day. But our

court has not. We have already rejected this substantive claim. Almario, 872 F.2d at 151. Other

circuits have, too. See Silverman v. Rogers, 437 F.2d 102, 107 (1st Cir. 1970) (“Even assuming

that the federal government had no right either to prevent a marriage or destroy it, we believe

that here it has done nothing more than to say that the residence of one of the marriage partners

may not be in the United States.”); Burrafato v. U.S. Dep’t of State, 523 F.2d 554, 555 (2d Cir.

1975) (“[N]o constitutional right of a citizen spouse is violated by deportation of his or her alien

spouse.”); Swartz v. Rogers, 254 F.2d 338, 339 (D.C. Cir. 1958) (“[T]he wife has no

constitutional right which is violated by the deportation of her husband.”).

Ahmed’s procedural due process claim does not improve matters. He argues that the

statutes governing the visa-application process create a marriage and family-based liberty

interest. See 8 U.S.C. §§ 1153(a), 1154(b). And he says that the consulate deprived him of that

No. 20-1802 Baaghil, et al. v. Miller, et al. Page 8

interest without giving him adequate process. See Mathews v. Eldridge, 424 U.S. 319, 335

(1976). But even if we take this liberty interest as a given, the argument fails because the

consulate provided a facially legitimate reason for the visa denials: concerns about Ahmed and

his putative family’s identity. 22 C.F.R. § 42.81(a); 8 U.S.C. § 1201(g); see Din, 576 U.S. at 102

(Kennedy, J., concurring in the judgment) (rejecting a similar argument). Such concerns in truth

require the consulate to deny a visa application. 8 U.S.C. § 1201(g) (“No visa or other

documentation shall be issued to an alien if . . . the consular officer knows or has reason to

believe that such alien is ineligible to receive a visa or such other documentation.”); 22 C.F.R.

§ 42.43 (“The consular officer shall suspend action in a petition case . . . if the officer knows or

has reason to believe . . . that the beneficiary is not entitled, for some other reason, to the status

approved.”). Preferred visas for family members after all are available only for the real family of

a real lawful permanent resident. 8 U.S.C. § 1153(a)(2)(A). These identity concerns gave the

consulate “reason to believe” that the family did not qualify for them. 8 U.S.C. § 1201(g). It

makes no difference that the consulate did not cite these statutes. If a bare citation to a statute

suffices, see Hawaii, 138 S. Ct. at 2419; Hussein v. Beecroft, 782 F. App’x 437, 442 (6th Cir.

2019); Sesay, 984 F.3d at 316, so does a paraphrasing of its text. Ahmed “received all the

process to which [he] was entitled.” See Din, 576 U.S. at 102 (Kennedy, J., concurring in the

judgment).

Ahmed insists that his family “provided the consular officer everything they needed” to

confirm their identities. R.61-4 at 3. But that does not change matters. The reality that he could

present evidence to address the consulate’s concerns undercuts his submission that the process

was unfair. As to the substance of the decision—surely his real concern—that is not our call to

make. We have no authority to investigate, or for that matter to oversee federal court discovery

of, the merits of each consulate decision in this area.

Ahmed adds that the Administrative Procedure Act allows him to challenge the visa

denials. But the APA says that it does not supplant “other limitations on judicial review.”

5 U.S.C. § 702. The doctrine of consular non-reviewability predates the passage of the APA and

amounts to one such limitation on judicial review that supersedes the APA’s general authority to

challenge a “legal wrong” caused by the national government. See Saavedra Bruno v. Albright,

No. 20-1802 Baaghil, et al. v. Miller, et al. Page 9

197 F.3d 1153, 1160 (D.C. Cir. 1999) (quotation omitted); Morfin v. Tillerson, 851 F.3d 710,

711 (7th Cir. 2017). The APA thus does not offer an “avenue for review of a consular officer’s

adjudication of a visa on the merits.” Allen v. Milas, 896 F.3d 1094, 1108 (9th Cir. 2018).

All in all, the district court aptly rejected the motion to amend the complaint on futility

grounds.

I-130 Petition. After the government announced that it would submit Ahmed’s petition

for reconsideration and possible revocation, Ahmed moved to amend his complaint, alleging that

the government has not undertaken the proper process to revoke his lawful permanent resident

status and claiming that a denial of his I-130 petition without the proper process to revoke his

status would violate his due process rights and the immigration regulations. He also sought a

writ of mandamus to compel the agency to adjudicate his I-130 petition within 30 days.

The district court denied leave to amend his complaint in these ways, once again on

futility grounds. Once again, it was correct.

The key impediment is that the claim is premature. Neither Ahmed nor we have any idea

when the government will rule on his I-130 petition or when as a separate matter it might try to

revoke his lawful permanent resident status. Nor do we know whether or if the government will

provide adequate process in pursuing either potential route. That makes these claims unripe for

federal court adjudication. “If and when do not a ripe controversy make.” OverDrive Inc. v.

Open E-Book F., 986 F.3d 954, 958 (6th Cir. 2021); see Trump v. New York, 141 S. Ct. 530, 535

(2020) (explaining that claims depending on “contingent future events that may not occur as

anticipated, or indeed may not occur at all,” do not present ripe disputes) (quotation omitted).

As for his separate mandamus request, that would not survive a 12(b)(6) motion, making

this proposed amendment to his complaint futile as well. Riverview Health Inst. LLC v. Med.

Mut. of Ohio, 601 F.3d 505, 512 (6th Cir. 2010). The “extraordinary” writ requires Ahmed to

show that he “has a clear right to relief,” that the government official has a “clear duty to act,”

and that he has “no other adequate remedy.” Carson v. U.S. Off. of Special Counsel, 633 F.3d

487, 491 (6th Cir. 2011) (quotation omitted).

No. 20-1802 Baaghil, et al. v. Miller, et al. Page 10

Ahmed does not have a “clear right” to have his petition adjudicated within 30 days. No

statute sets a time frame for reconsideration of an I-130 petition. The Immigration Services

agency instead processes them in the order they arrive. Hussein, 782 F. App’x at 444. Only four

months separated his petition’s arrival at the processing center and his request for mandamus

relief. Although it has now been over a year, “[a] delay of less than two years by itself, given the

limited resources and corresponding demands on our immigration offices, does not establish a

plausible case for mandamus.” Id. A backlog of petitions best explains the delay, id., a problem

perhaps exacerbated by the COVID-19 pandemic. The district court aptly rejected the motion to

amend the complaint to include these claims on futility grounds.

Original Claims. One loose end remains to be tied. Ahmed began this lawsuit by asking

the district court, through a separate request for mandamus relief, to order the consulate to rule

on his family’s visa applications. Before the district court reached a decision, the consulate

denied the applications on the merits. As Ahmed received the relief he asked for—a ruling from

the consulate—the district court correctly determined that his original claims are moot. See id.;

see also Church of Scientology v. United States, 506 U.S. 9, 12 (1992).

We affirm.