Algazali v. Blinken

Background

Nawaf Saleh Algazali and his wife, Raihan Dhaif Allah Suhail, brought an action seeking an order requiring government officials to revoke the refusal of Suhail’s immigrant visa application and adjudicate it properly. They also sought a declaration that government policies and practices discriminated against Yemeni applicants and Yemeni-Americans.

Algazali, a U.S. citizen, filed an immigrant petition for Suhail in 2019; that petition was denied. He filed a second petition in 2020, which was approved in 2022. After Suhail applied for an immigrant visa, she interviewed at the U.S. Embassy in Cairo on March 5, 2023. A consular officer refused the application under 8 U.S.C. § 1201(g), requested a new joint sponsor, and later requested additional information. After Plaintiffs supplied the requested materials, Defendants issued another refusal under the same statute. Plaintiffs then filed this case.

Claims and jurisdiction

The First Amended Complaint asserted six causes of action: an Administrative Procedure Act claim for wrongful refusal to issue a visa; Algazali’s Fifth Amendment procedural due process claim; an Immigration and Nationality Act claim alleging discriminatory visa procedures against Yemeni petitioners and beneficiaries; Fifth Amendment equal-protection claims; and claims under the Declaratory Judgment Act and Mandamus Act.

Defendants moved to dismiss under Federal Rules of Civil Procedure 12(b)(1), for lack of subject-matter jurisdiction, and 12(b)(6), for failure to state a legally sufficient claim. The court rejected the jurisdictional arguments. It held that the claims were not moot because Plaintiffs continued to seek a decision on Suhail’s application, and that the doctrine of consular nonreviewability is not jurisdictional. The court also held that the complaint presented federal questions because its claims arose under federal statutes or the Constitution.

Rulings on the claims

The court dismissed Count Two, Algazali’s procedural due process claim, because Plaintiffs acknowledged that the Supreme Court’s decision in Department of State v. Muñoz had eliminated that theory.

The court dismissed Counts One and Six, the Administrative Procedure Act and Mandamus Act claims concerning the visa refusal and alleged delay. The doctrine of consular nonreviewability generally prevents judicial review of a consular officer’s decision to issue or refuse a visa. The court held that the officer had refused Suhail’s visa, rather than merely leaving the application undecided, and that the refusal was therefore not reviewable. The court also held that the exception for a visa refusal allegedly burdening a U.S. citizen’s constitutional rights did not apply because a U.S. citizen has no constitutional right to bring a spouse into the United States.

The court dismissed Count Three, the Immigration and Nationality Act claim. Although the statute generally prohibits discrimination in immigrant-visa issuance based on nationality, the court held that the statute preserves the Secretary of State’s authority to establish procedures for processing immigrant-visa applications. The alleged discriminatory procedures therefore could not support this claim.

The court dismissed Count Four as asserted by Suhail because, as a nonresident noncitizen, she did not have the claimed Fifth Amendment equal-protection rights in connection with seeking initial admission to the United States. The court dismissed Algazali’s Count Four claim for failure to state a claim. The complaint did not allege that his own petitioning process involved discriminatory treatment, and it did not plausibly allege intentional discrimination against him because of national origin. The court also held that Algazali could not assert rights belonging to Suhail.

Disposition

Judge Lorna G. Schofield granted the Government’s motion to dismiss the First Amended Complaint for failure to state a claim. Defendant Anthony Blinken was dismissed for the additional reason that he was not a proper party, an argument Plaintiffs did not oppose. Except for Algazali’s discrimination claim in Count Four, the claims were dismissed with prejudice and without leave to replead. The court allowed Algazali, if he believed he could cure the pleading deficiency, to submit by February 14, 2025, a proposed Second Amended Complaint limited to that claim.