Sadideen v. United States Citizenship and Immigration Services

• Court: District Court, D. Arizona
• Decided: July 10, 2020
• Docket: 2:19-cv-05122
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Tarek Sadideen, et al., No. CV-19-05122-PHX-MTM

10 Plaintiffs, ORDER DISMISSING COMPLAINT 11 v.

12 United States Citizenship and Immigration Services, et al., 13 Defendants. 14 15 16 Pending before the Court is Defendants’ Motion to Dismiss (doc. 19), filed May 14, 17 2020. Defendants seek dismissal of the First Amended Complaint (doc. 12) pursuant to 18 Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiffs submitted a Response in 19 Opposition (doc. 20) on May 28, 2020. Defendants filed a Reply (doc. 21) on June 4, 2020. 20 For the reasons explained below, Plaintiffs have failed to state a claim for which relief can 21 be granted. Accordingly, the Court grants Defendant’s Motion to Dismiss, but will grant 22 Plaintiffs the opportunity to amend their equal protection claim.1 23 I. Factual Background. 24 A court considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6) must accept 25 as true all factual allegations in the complaint and must draw all reasonable inferences in 26 favor of the nonmoving party. Retail Prop. Trust v. United Bhd. of Carpenters & Joiners 27 of Am., 768 F.3d 938, 945 (9th Cir. 2014) (internal citations omitted). Therefore, the Court

28 1 The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). (See docs. 8, 15). 1 assumes as true all the factual contentions in the First Amended Complaint.2 2 Plaintiffs Tarek Sadideen, Suhair Amer, Doraid T. Sadideen, and Yousra T. 3 Sadideen3 are Saudi Arabian nationals who last entered the United States on October 7, 4 2002. (Doc. 12 at 3).4 Plaintiffs filed I-485 adjustment applications in Phoenix, Arizona on 5 August 13, 2004, which have been pending ever since. (Id. at 5). On July 11, 2017, Plaintiff 6 Tarek Sadideen filed an I-140 Petition for a National Interest Waiver with Defendant 7 United States Citizenship and Immigration Services (“USCIS”). (Doc. 12-1, Ex. B at 4). 8 In support of the I-140 Petition, Plaintiff Tarek Sadideen provided evidence of more than 9 three decades of experience with the Saudi Arabian Oil Company in a number of roles, 10 including as a specialist in marine environmental issues. (Doc. 12-1, Ex. D at 11). 11 According to Plaintiffs, Tarek Sadideen’s extensive experience in the oil industry 12 constituted skills of great importance to the United States, such that he merited an I-140 13 National Interest Waiver to work in the United States. (Doc. 12 at 6). 14 On November 17, 2018, USCIS determined that Tarek Sadideen’s employment 15 history established exceptional ability classification, but that he nonetheless has not met 16 the criteria for an I-140 visa as set forth in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 17 2016). (Doc. 12 at 6). Plaintiffs state that USCIS never contacted Tarek Sadideen to arrange 18 a personal interview prior to issuing its decision rejecting the I-140 Petition. (Id). Plaintiffs 19 appealed USCIS’ decision to the Administrative Appeals Office (AAO), which affirmed

20 2 Although the general rule is that a court is not to consider material beyond the pleadings when ruling on a Rule 12(b)(6) motion, a court may consider exhibits if the documents are 21 referenced in the complaint and have not had their authenticity challenged. Spears v. Ariz. Bd. of Regents, 409 F. Supp. 3d 779, 784 (D. Ariz. 2019). Defendants do not contest the 22 authenticity of any of the exhibits submitted with the First Amended Complaint, and Plaintiffs do not contest the authenticity of the affidavit submitted with the Motion to 23 Dismiss. Moreover, these exhibits are repeatedly referenced by the parties in their filings. (See, e.g. doc. 12 at 5, doc. 19 at 5, 6). Accordingly, the Court will consider these exhibits 24 as part of the Motion to Dismiss.

25 3 While the First Amended Complaint spells the surname of Plaintiffs Doraid and Yousra as “Sadieen” (doc. 12 at 3), the I-485 Forms submitted as exhibits in this matter spell their 26 surnames “Sadideen.” (Doc. 12-1, Ex. C at 8, 9). The Court presumes that “Sadideen” is the correct spelling. 27 4 Plaintiff Amer is the spouse of Plaintiff Tarek Sadideen, while Plaintiffs Doraid T. 28 Sadideen and Yousra T. Sadideen are the children of Plaintiff Tarek Sadideen. 1 the denial of the I-140 visa on October 19, 2018. (Doc. 12-1, Ex. E at 15). 2 On September 9, 2019, Plaintiffs filed an action in this Court. (Doc. 1). On February 3 26, 2020, Defendants filed a Motion to Dismiss under Rules 12(b)(1) and Rules 12(b)(6) 4 of the Federal Rules of Civil Procedure for lack of subject-matter jurisdiction and failure 5 to state a claim. (Doc. 11). On March 18, 2020, Plaintiffs filed a First Amended Complaint 6 (doc. 12). On March 27, 2020, this Court denied Defendants’ Motion to Dismiss in light of 7 the filing of the First Amended Complaint. (Doc. 18). 8 II. First Amended Complaint. 9 Plaintiffs assert two constitutional violations by Defendants in the First Amended 10 Complaint. First, Plaintiffs state that Defendants violated Plaintiffs’ Fifth Amendment right 11 to due process in denying the I-140 Petition without conducting a personal interview. (Doc. 12 12 at 7). Plaintiffs assert that Defendants deprived Plaintiffs of an opportunity to be heard 13 in a personal interview before the I-140 Petition was adjudicated. Plaintiffs further allege 14 that the failure to conduct a personal interview cost Plaintiffs “a significant opportunity to 15 receive an immigrant visa.” (Id). Therefore, Plaintiffs conclude that Plaintiffs’ Fifth 16 Amendment right to due process was violated by Defendants’ failure to provide a personal 17 interview to Plaintiff Tarek Sadideen prior to rejecting his I-140 Petition. 18 Second, Plaintiffs state that Defendants violated Plaintiff’s Fifth Amendment right 19 to equal protection of the laws. Plaintiffs state that Defendants always provide a personal 20 interview to individuals petitioning for an I-130 noncitizen5 relative visa. Plaintiffs further 21 allege that Defendants do not provide individuals petitioning for an I-140 national interest 22 waiver the opportunity to receive a personal interview. (Id). Plaintiffs conclude that this 23 constitutes disparate treatment in violation of Plaintiff’s Fifth Amendment right to equal 24 protection of the laws. 25 III. Motion to Dismiss. 26 On May 14, 2020, Defendants filed a Motion to Dismiss under Rule 12(b)(6) for 27 failure to state a claim. (Doc. 19). Defendants argue that Plaintiffs have failed to allege

28 5 This decision uses the term “noncitizen” as equivalent to the statutory term “alien” found at 8 U.S.C. § 1101(a)(3). See Nasrallah v. Barr, 140 S. Ct. 1683, 1689 n.2 (2020). 1 sufficient facts to state a claim for either a due process or equal protection violation under 2 the Fifth Amendment. (Id. at 3, 7). Therefore, Defendants conclude that both counts should 3 be dismissed, and this action should be terminated. (Id. at 1). 4 First, Defendants argue Plaintiffs have not alleged a violation of their due process 5 rights. Defendants argue that Plaintiffs lack a constitutionally protected property interest 6 in an I-140 visa, which Defendants assert is a necessary precondition to stating a due 7 process claim. (Id. at 4, citing Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 8 (1972)). Plaintiffs lack this interest, according to Defendants, because the decision to award 9 an I-140 visa is discretionary, meaning no individual is automatically entitled to receive an 10 I-140 visa. (Doc. 19 at 4.) Defendants further argue that, even if Plaintiffs could claim a 11 constitutionally protected interest in an I-140 visa, Plaintiffs have not alleged facts 12 sufficient to show they were prejudiced by USCIS’ failure to grant Plaintiff Tarek Sadideen 13 a personal interview before rejecting the I-140 Petition. (Id., citing Gomez-Velazco v. 14 Sessions, 879 F.3d 989, 993 (9th Cir. 2018)). Finally, Defendants state that, as a matter of 15 law, Plaintiffs received sufficient notice and an opportunity to be heard with regard to the 16 I-140 Petition even without a personal interview. (Doc. 19 at 6). Therefore, Defendants 17 conclude that Plaintiffs have failed to state a claim for a violation of the Due Process clause 18 of the Fifth Amendment. 19 Second, Defendants argue Plaintiffs have not alleged facts sufficient to state a claim 20 for a violation of equal protection under the Fifth Amendment. Defendants argue that 21 Plaintiffs have failed to allege that I-130 beneficiaries and I-140 beneficiaries are similarly 22 situated. (Id. at 7). Defendants concede that applicants for I-130 visas receive personal 23 interviews as a matter of course, while I-140 applicants do not. (Id. at 7-8). Defendants 24 argue however that, without factual allegations that identify how I-130 beneficiaries and I- 25 140 beneficiaries are similarly situated, the different treatment alone is insufficient to state 26 a claim for a violation of Plaintiffs’ equal protection rights. (Id. at 8). 27 // 28 // 1 IV. Legal Analysis. 2 A. Principles of Law. 3 A complaint survives a Rule 12(b)(6) motion only when it alleges “enough facts to 4 state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 5 544, 570 (2007). Plausibility requires factual content that permits the court to draw a 6 reasonable inference that the defendant is responsible for the misconduct alleged by the 7 plaintiff. “Threadbare recitals of the elements of a cause of action, supported by mere 8 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 9 To state a claim for a violation of the Due Process Clause under the Fifth 10 Amendment of the United States Constitution, a party must establish that (1) the party 11 possesses a liberty or property interest deserving of constitutional protection, and that (2) 12 the party was deprived of notice and an opportunity to be heard related to the deprivation 13 of that interest. Sommer v. Elmore Cnty., 903 F. Supp. 2d 1067, 1070 (D. Idaho 2012) 14 (citing Matthews v. Eldridge, 424 U.S. 319, 332 (1976)).6 15 The Equal Protection Clause commands that no state may “deny to any person 16 within its jurisdiction the equal protection of the laws.” This means that “all persons 17 similarly situated should be treated alike.” Ariz. Dream Act Coalition v. Brewer, 757 F.3d 18 1053, 1063 (9th Cir. 2014). Though the Fifth Amendment does not contain an express 19 equal protection clause, federal courts have read an equal protection guarantee equivalent 20 to the Fourteenth Amendment into the Fifth Amendment. See United States v. Windsor, 21 570 U.S. 744, 774 (2013); Novak v. United States, 795 F.3d 1012, 1023 (9th Cir. 2015). 22 The first step in equal protection analysis is to identify the state’s classification of 23 groups. Brewer, 757 F.3d at 1064 (citing Country Classic Dairies, Inc. v. Milk Control 24 Bureau, 847 F.2d 593, 596 (9th Cir. 1988) (internal quotations omitted)). The focus then 25 shifts to identifying traits common to the classified groups that are both similar and relevant

26 6 Though these cases concern the application of the Due Process Clause of the Fourteenth Amendment of the United States Constitution, due process analysis under the Fifth 27 Amendment is functionally identical. See Dusenbery v. United States, 534 U.S. 161, 167 (2002) (“The Due Process Clause of the Fifth Amendment prohibits the United States, as 28 the Due Process Clause of the Fourteenth Amendment prohibits the States, from depriving nay person of property without ‘due process of law’”). 1 to the state policy. Id. A court then determines the appropriate level of scrutiny to apply to 2 the alleged classification. Gallinger v. Becerra, 898 F.3d 1012, 1016 (9th Cir. 2018). A 3 court may decline to decide whether two groups are similarly situated if the classification 4 survives equal protection analysis regardless. Id. 5 B. Due Process Clause Analysis. 6 Plaintiffs fail to state a claim for a violation of the Due Process Clause of the Fifth 7 Amendment. Plaintiffs lack a property interest in the granting of an I-140 visa. A person 8 cannot possess a constitutionally protected interest in a government issued benefit if 9 “government officials may grant or deny it in their discretion.” Town of Castle Rock v. 10 Gonzales, 545 U.S. 748, 756 (2005). As the Ninth Circuit recently held in Poursina v. U.S. 11 Citizenship and Immigration Servs., 936 F.3d 868 (9th Cir. 2019), “[Section] 12 1153(b)(2)(B)(i)’s plain language specifies that the authority to grant (or to deny) a 13 national-interest waiver is in the discretion of the Attorney General.” Id. at 872. Therefore, 14 no constitutionally protected property interest can exist in an I-140 visa. As a matter of 15 law, Plaintiffs have failed to state a claim for a violation of the Due Process Clause. 16 The dismissal of Plaintiffs’ Due Process Clause claim is with prejudice. A dismissal 17 for failure to state a claim is typically without prejudice, unless it is clear the complaint 18 cannot be saved by any amendment. Hutton v. McDaniel, 264 F. Supp. 3d 996, 1025 (D. 19 Ariz. 2017) (citing Airs Aromatics, LLC v. Op. Victoria’s Secret Stores Brand Mgmt., Inc., 20 744 F.3d 595, 600 (9th Cir. 2014)). Additional amendments to the First Amended 21 Complaint would not revive Plaintiff’s Due Process Clause claim; the Ninth Circuit’s 22 conclusion in Poursina that I-140 visas are discretionary deprives Plaintiffs of any property 23 interest that may be protected by the Fifth Amendment. Plaintiffs’ argument to the contrary 24 in the Complaint that I-140 visas are constitutionally protected property interests (doc. 12 25 at 7) is a conclusion of law not entitled to the deference afforded factual allegations when 26 considering a Rule 12(b)(6) motion. Iqbal, 556 U.S. at 678 (“First, the tenet that a court 27 must accept as true all of the allegations contained in a complaint is inapplicable to legal 28 conclusions.”). Plaintiffs cannot allege any new facts that will affect the legal conclusion 1 that Plaintiffs lack a property interest in an I-140 visa. Accordingly, the dismissal of the 2 Due Process Clause claim is with prejudice. 3 C. Equal Protection Clause Analysis. 4 Plaintiffs fail to state an equal protection claim. Plaintiffs do not offer facts in the 5 First Amendment Complaint that demonstrate applicants for I-130 visas and applicants for 6 I-140 visas are similarly situated. In fact, the First Amended Complaint does not even 7 allege that I-130 applicants and I-140 applicants are similarly situated; it merely states the 8 principle that “[t]he Equal Protection guarantee of the United States Constitution forbids 9 different treatment of similarly situated persons without an adequate justification for 10 different treatment.” (Doc. 12 at 7). This is insufficient to demonstrate that I-130 applicants 11 and I-140 applicants are similarly situated.7 12 Neither the First Amended Complaint nor the Response (doc. 20) to the Motion to 13 Dismiss explain how I-130 applicants and I-140 applicants are similarly situated. Instead, 14 Plaintiffs argue in the Response that the two categories of visa applicants are treated 15 differently even though the issuance language of 8 U.S.C. § 1154(b) requires the Attorney 16 General to approve a petition should the noncitizen meet the statutory requirements of 8 17 U.S.C. § 1151(b) (for an I-130 visa) or 8 U.S.C. § 1153(b) (for an I-140 visa). (Id. at 3-4, 18 citing Ching v. Mayorkas, 725 F.3d 1149, 1155 (9th Cir. 2013)). 19 However, Section 1154(b) hurts Plaintiffs’ argument rather than helps it. 8 U.S.C. 20 § 1153(b)(2)(B)(i), the section governing national interest waivers, unambiguously states 21 that “the Attorney General may, when the Attorney General deems it to be in the national 22 interest, waive the requirements of [8 U.S.C. § 1153(b)(2)(A)].” (emphasis added). So, 23 even though Section 1154(b) requires the Attorney General to approve a petition where a 24 noncitizen meets the statutory requirements, it does not compel the conclusion that I-130 25 applicants and I-140 applicants are similarly situated, because the statutory requirements 26 for a national interest waiver are themselves discretionary. 27 7 Because the Court concludes Plaintiffs have failed to plead facts that demonstrate the two 28 categories of groups are similarly situated, the Court does not reach the question of what level of scrutiny applies to Defendants’ policy regarding personal interviews. 1 The dismissal of Plaintiffs’ Equal Protection Clause claim is without prejudice. For 2|| groups of individuals to be “similarly situated,” they must “be similar in those respects that || are relevant to [the state’s] own interests and its policy.” Ariz. Dream Act Coalition v. Brewer, 855 F.3d 957, 966 (9th Cir. 2017). This is a highly context-dependent inquiry that 5 || necessarily involves factual considerations. Accordingly, the Court cannot conclude on the 6 || record before it that Plaintiffs could never allege facts sufficient to show I-130 applicants || and J-140 applicants are similarly situated. Accordingly, the dismissal is without prejudice. 8] V. Conclusion. 9 Plaintiffs’ due process claim is conclusively foreclosed by the Ninth Circuit’s || decision in Poursina and so must be dismissed without leave to amend. Plaintiffs equal 11 |} protection claim rests on an unfounded legal conclusion and so must be dismissed as well. 12 || But because the Court does not conclude amendment of the equal protection claim would 13 || be futile, the Court dismisses the equal protection claim with leave to amend. 14 IT IS ORDERED: 15 (1) Defendants’ Motion to Dismiss (doc. 19) is granted. 16 (2) Count One of the First Amended Complaint (doc. 12) is dismissed with || prejudice. 18 (3) | Count Two of the First Amended Complaint (doc. 12) is dismissed without prejudice. Plaintiffs may file, within twenty-one (21) days of the issuance of this Order, a 20 || Second Amended Complaint that cures the deficiencies identified herein. 21 Dated this 10th day of July, 2020. 22 23 Wihnk Ve Morrisey Honorable Michael T. Morrissey 14 United States Magistrate Judge 25 26 27 28

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