Algzaly v. Blinken

Background

Rafiak Mohamed Algzaly, a naturalized American citizen, sponsored his sons, Hani Rafeq Mohammed Alghazali and Gubran Rafeq Mohammed Alghazali, for immigrant visas. The complaint alleged that consular officials refused the sons’ visa applications based on alleged khat use, medical misrepresentations, and, for Gubran, polygamy. The plaintiffs alleged that embassy corruption affected the khat testing and medical-refusal process.

The plaintiffs asserted claims under the Immigration and Nationality Act, the Administrative Procedure Act (APA), and the Fifth Amendment’s due process protections. They sought, among other relief, an order requiring the government to revoke the visa refusals and properly adjudicate the applications. They also sought attorneys’ fees and costs under the Equal Access to Justice Act.

Motions and Parties’ Arguments

The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim. They argued that the doctrine of consular non-reviewability generally prevents courts from reviewing consular officers’ visa decisions. They contended that the officers had cited statutory grounds for ineligibility, including material misrepresentation and polygamy, which they argued were sufficient to prevent judicial review.

The plaintiffs argued that the consular decisions lacked a facially legitimate and bona fide reason, that the officers may have acted in bad faith, and that Rafiak had a constitutional interest in the visa applications he sponsored for his sons. They also argued that the APA should permit review, while acknowledging that Ninth Circuit precedent held otherwise.

The plaintiffs separately moved for leave to amend under Rule 15(a)(2). They sought to add allegations concerning the 2018 refusal of Gubran’s visa application based on alleged polygamy. The defendants argued that amendment would be futile and untimely.

Analysis

The court held that the APA claim was barred by the Ninth Circuit’s decision in Allen v. Milas, which concluded that the APA provides no avenue to review a consular officer’s adjudication of a visa on the merits. The court stated that it was bound by that precedent and concluded that amendment of the APA claim would be futile.

As to the remaining claims, the court did not decide whether the allegations were ultimately sufficient. It concluded that those claims were not so clearly barred by binding precedent that amendment would be futile. The court explained that the plaintiffs might be able to pursue limited constitutional review under the framework associated with Kleindienst v. Mandel, although it identified unresolved issues, including whether a parent has a constitutionally protected interest in an adult child’s visa application.

The court also stated that the statutory grounds cited by the consular officers likely supplied facially sufficient reasons for the visa refusals. However, it concluded that the plaintiffs might still be able to allege bad faith with sufficient detail. Because amendment was not plainly futile and the defendants had not shown prejudice, the court allowed amendment of the remaining claims.

Disposition

The defendants’ motion to dismiss was granted as to the plaintiffs’ APA claim, and that claim was dismissed with prejudice. The plaintiffs’ motion for leave to amend was denied as to the APA claim.

As to all other claims, the defendants’ motion to dismiss was denied as moot, because the amended complaint would replace the current complaint. The plaintiffs’ motion for leave to amend was granted as to those claims. The court ordered the plaintiffs to file an amended complaint no later than February 5, 2021.