Saleh v. Blinken

Background

Mahmood Ahmed Fadhl Saleh, a U.S. citizen, sued Antony Blinken and other defendants over a U.S. Department of State consular officer’s refusal to accept for adjudication a Form I-130 petition for Saleh’s minor daughter, S.M.A.F. The petition would establish the qualifying family relationship needed for S.M.A.F. to seek immigration to the United States.

Ordinarily, a U.S. citizen files an I-130 petition with U.S. Citizenship and Immigration Services. In limited circumstances, the State Department’s Foreign Affairs Manual allows a petitioner to file directly with an embassy or consulate based on exceptional circumstances, including threats to personal safety. Saleh alleged that he and his family had fled Yemen because of dangerous conditions and were residing in Djibouti. He sought to file the petition directly with the U.S. Embassy there, but the Embassy denied the request.

The complaint asserted claims under the Administrative Procedure Act, which permits courts to review certain unlawful agency actions; the Fifth Amendment’s Due Process Clause; and the Declaratory Judgment Act. Plaintiffs alleged that the defendants acted arbitrarily and contrary to the State Department’s written policies. They requested, among other relief, an order allowing Saleh to file the petition directly with the Embassy.

Defendants’ Arguments

Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that:

Court’s Analysis

The court denied each argument.

Administrative Procedure Act claim. The court explained that the Administrative Procedure Act strongly presumes that agency action is reviewable. An exception applies when a matter is committed to agency discretion by law, but that exception is narrow and applies only when there is no meaningful standard for a court to use in reviewing the agency’s action.

The court agreed that the relevant statutes and regulations did not themselves provide standards governing direct-filed I-130 petitions. But it concluded that the Foreign Affairs Manual supplied meaningful standards. The Manual identifies exceptional circumstances in which consular officers may accept direct filings and includes threats to personal safety, such as circumstances in which a petitioner and beneficiary were forced to flee their country because of civil strife and are in precarious circumstances elsewhere. The court held that this policy allowed judicial review of whether the agency exercised its discretion arbitrarily or abused its discretion. It therefore denied the motion to dismiss the Administrative Procedure Act claim on that ground.

Due process claims. The court stated that S.M.A.F. had no constitutional right to immigrate to the United States. But it distinguished the Supreme Court’s decision concerning a citizen’s challenge to the denial of a noncitizen spouse’s visa. Here, Saleh challenged the refusal to accept his own petition, which concerned the first step of the immigration process, rather than the later denial of a visa application.

Relying on Ninth Circuit precedent, the court held that Saleh had a protected property interest in his own I-130 petition to establish that S.M.A.F. was his daughter. The court therefore denied the motion to dismiss the due process claims on this ground.

Consular non-reviewability. The court concluded that the doctrine did not bar Plaintiffs’ claims at this stage because no visa application had been denied. Instead, the challenged action was the refusal to accept Saleh’s direct-filed I-130 petition. Defendants had not cited a case applying consular non-reviewability to those circumstances. The court therefore denied the motion to dismiss on that ground as well.

The court also rejected Defendants’ argument concerning the Declaratory Judgment Act, stating that the same reasoning supporting its refusal to dismiss the due process claims applied.

Disposition

The court DENIED Defendants’ motion to dismiss. The order allowed Plaintiffs’ claims to proceed but did not determine whether Defendants’ refusal to accept the direct-filed petition violated the Administrative Procedure Act, the Due Process Clause, or the Declaratory Judgment Act.