Tawfik Abdo Ahmed v. Alejandro Mayorkas

• Court: District Court, C.D. California
• Decided: September 25, 2024
• Docket: 2:23-cv-04807
• Status: Unknown

Opinion

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 TAWFIK ABDO SALEH AHMED, et No. CV 23-4807 PA (ASx) al., 12 FINDINGS OF FACT AND Plaintiffs, CONCLUSIONS OF LAW 13 v. 14 ALEJANDRO MAYORKAS, et al., 15 Defendants. 16 17 18 Plaintiffs Tawfik Abdo Saleh Ahmed (“Tawfik Ahmed”), Fatima Kassim Ali 19 (“Fatima” or “Ms. Ali”), Kassim Faisal Muthana (“Kassim”), and minor S.F.M. (collectively 20 “Plaintiffs”) commenced this action on June 19, 2023. Plaintiffs’ Complaint alleges a claim 21 pursuant to the Administrative Procedures Act (“APA”), 5 U.S.C. § 702. The Complaint 22 also asserts constitutional claims for violations of Plaintiffs’ rights under the Equal 23 Protection Clause and the Due Process Clause of the Fifth Amendment. The Complaint 24 names as defendants Alejandro Mayorkas, Secretary of the Department of Homeland 25 Security (“DHS”); DHS; United States Citizenship and Immigration Services (“USCIS”); Ur 26 Jaddou, Director of USCIS; USCIS California Service Center; Kathy Baran, Director of 27 USCIS’ California Service Center; Antony Blinken, Secretary of State; and Djibouti U.S. 2 Administrative Record (“CAR”), and the parties filed their Opening Trial Briefs, their 3 respective proposed Findings of Fact and Conclusions of Law, and their objections to each 4 other’s proposed Findings of Fact and Conclusions of Law. 5 The Court now makes the following findings of fact and conclusions of law pursuant 6 to Federal Rule of Civil Procedure 52(a). Any finding of fact that constitutes a conclusion 7 of law is hereby adopted as a conclusion of law, and any conclusion of law that constitutes a 8 finding of fact is hereby adopted as a finding of fact. 9 I. Findings of Fact 10 1. Plaintiffs’ Complaint alleges a claim pursuant to the Administrative Procedure 11 Act, 5 U.S.C. § 702. (“APA”). Specifically, Plaintiffs challenge USCIS’ denial of the 12 Petitions for family-based immigrant visas of which they are the intended beneficiaries (“I- 13 130 Petitions”). The Complaint also asserts constitutional claims for violations of Plaintiffs’ 14 rights under the Equal Protection Clause and the Due Process Clause of the Fifth 15 Amendment, and seeks declaratory and injunctive relief for those claims. 16 2. Defendants have filed their Certified Administrative Record (“CAR”), in four 17 parts, providing all the materials that were considered in USCIS’ decisions to deny the 18 petitions for alien relative for each of the Plaintiffs-beneficiaries (Dkt ## 22-24) and 19 materials that were considered in the creation of USCIS Policy Memorandum PM-602-0064, 20 the Supplemental Guidance for Adjudicating Family-Based Petitions Supported by 21 Relationship Documents Actually or Purportedly Issued by a Civil Authority in Yemen; 22 Revision to the Adjudicator’s Field Manual (AFM) Chapter 21 (the “Yemeni Guidance”) 23 (Dkt # 25-1). 24 3. In their Complaint in this action, filed on June 19, 2023, Plaintiffs admit that 25 “[a]t all relevant times, the adjudication of Plaintiffs’ and all other Yemeni I-130 petitions 26 was governed by the procedures, processes and standard established in [the Yemeni 27 Guidance].” Dkt # 1 ¶¶17, 214]. 1 4. The deceased Petitioner Faisal Abdulla Muthana (“Petitioner”) was born in 2 || Yemen in 1965. CAR 22-1 at 227. He resided in the United States since 1992 and was 3 || naturalized on March 28, 2019. Id. at 239; Dkt # 23-2 at 78, 89. 4 5. On March 7, 2018, Petitioner filed a petition for alien relative (Form I- 130) 5 || on behalf of Plaintiff Fatima Kassim Ali, a national and resident of Yemen, who he 6 || allegedly married on June 20, 1995. Id. at 227-28. 7 6. In support of the Petition, Petitioner submitted the translation of a marriage 8 || certificate that was registered in Yemen several years after the alleged 1995 ceremony. Id. 9 | at 209. 10 7. Allegedly Ms. Ali was previously married to another man, Abdo Saleh 11 || Ahmed, whose death in 1992 was not reported until the year 2020. Id. at 7, 199. 12 8. Petitioner is now deceased. See Exhibit B to Complaint. 13 9, On December 30, 2019, USCIS issued to Petitioner a request for further 14 || evidence (“RFE”) to establish that his marriage to Ms. Ali was bona fide. See id. at 18. The 15 || RFE requested, inter alia, copies of their correspondence prior to their alleged marriage, as 16 || well as correspondence establishing that they maintained their relationship thereafter. Id. 17 10. Petitioner did not provide any such correspondence in response to the RFE, 18 || despite claiming that that he and Ms. Ali had communicated through WhatsApp, Viber, and 19 || other apps. Id. at 3-4. 24. 20 11. Although Petitioner was able to provide birth certificates for children he 21 || claims were born of the marriage, two of these birth certificates reflected a delayed 22 || registration date. Id. at 5. 23 24 5 The substitute petitioner in this case, Plaintiff Tawfik Abdo Saleh Ahmed, was born in 1991 (Dkt # 22-1 at 237 and bears the name of Plaintiff Fatima Ali’s first husband, Abdo 26 || Saleh Ahmed (Dkt # 22-1 at 231). See also (Dkt # 22-1 at 6, 24, 26, 186, 202) (showing Tawfik Ahmed’s status as Petitioner’s stepson). However, Plaintiffs, in their Opening Trial 27 Brief, claimed that Tawfik Ahmed was the son of Ms. Ali and the Petitioner, and not the son 28 of her first husband Mr. Ahmed (Dkt # 38 at page 28 of 38). Plaintiffs have not explained this concerning inconsistency.

2 he used Western Union to transfer the funds. Id. at 24, 29. Once again, however, he was 3 unable to produce documentation of any such money transfers or any other evidence of joint 4 financial assets. Id. at 2, 6, 24. 5 13. With respect to the 10-year delay in the registry of the death of Ms. Ali’s 6 alleged first husband, Abdo Saleh Ahmed, (Id. at 200), Petitioner himself admitted to USCIS 7 that “Yemen has been known for its weak governmental documentation of birth, [m]arriage 8 and death certificates” (citing the Department of State’s warning that “[d]ates in these 9 [Yemeni] documents are always suspect. At best, they are only as good as the memory or 10 written records of the informant. At worst, the information in these documents can be 11 completely false.”). Dkt # 221 at 27. 12 14. On July 6, 2020, USCIS denied the petition for the marriage-based visa 13 because the evidence Petitioner provided, reviewed in its totality, was insufficient to satisfy 14 the Petitioner’s burden to establish a bona fide, good faith marriage with the intent to create 15 a shared life together, and/or that Ms. Ali was even free to marry Petitioner. Id. at 2-8. 16 15. On March 23, 2018, Petitioner submitted a form I-130 petition for the benefit 17 of Plaintiff Kassim Muthana (“Kassim”), a citizen and resident of Yemen, as his alleged son. 18 Dkt # 23-2 at 75. 19 16. In connection with the petition for a family-based visa for Kassim, on 20 December 30, 2019, USCIS issued a RFE for secondary evidence because the birth 21 certificate that was submitted was not contemporaneous with his date of birth. Dkt # 23-1 22 at 13. 23 17. With respect to the Petition for Kassim, USCIS requested that Petitioner 24 produce such secondary evidence as governmental, medical, religious, school, financial, 25 employment, insurance or residential records that reflected the names of both Kassim and 26 Petitioner, family photographs with notations indicating the persons photographed, as well 27 as the date and place they were taken, and correspondence referring to Petitioner and 1 | contemporaneously registered, and any evidence that the civil authorities independently 2 || corroborated the biological relationship between Petitioner and Kassim. Id. at 14. 3 18. The RFE for the Petition for Kassim also encouraged voluntary DNA testing 4 || to establish the biological relationship between Kassim and Petitioner. Id. 5 19. The RFE also permitted Petitioner to submit two or more affidavits of non- 6 || parties with knowledge of Kassim’s birth, but USCIS advised that, without the above 7 || secondary evidence, such affidavits would be accorded only minimal weight. Id. 8 20. Petitioner did not produce correspondence or photographs in response to the 9 || RFE, but produced purported copies of Kassim’s undated vaccination card and several 10 || school certificates, which documents listed only Kassim’s name and did not have a separate 11 || notation indicating the names of the parents. Id. at 21-50. 12 21. | The school records Petitioner provided listed Kassim’s name as “Kassim 13 |) Faisal Abdulla Abdulhai,” not Kassim Muthana. Id. 14 22. In addition, Petitioner did not provide any evidence as to the reason for the 15 || delay in registering Kassim’s birth, or any evidence that the civil authorities in Yemen ever 16 || corroborated the biological relationship between Petitioner and Kassim as requested in the 17 | RFE. Id. at 4. 5. 18 23. Petitioner also submitted an affidavit of his business partner, Mohamed 19 || Daiban, who allegedly witnessed the birth of Kassim, but as noted above, without the 20 || requested secondary evidence, this affidavit could only be accorded minimal probative 21 || weight. Id. at 4, 15. 22 24. The Petition for Kassim’s visa was denied on June 30, 2020. USCIS noted the 23 || paucity of secondary evidence submitted in response to the RFE and noted that Kassim’s 24 || birth certificate was not contemporaneous with his birth, and, as such, was accorded less 25 || weight than one that was timely registered. Id. at 2. 26 25. USCIS’ decision also noted that Petitioner was encouraged to submit DNA 27 || testing but Petitioner did not provide any evidence that DNA testing had been initiated. Id. 28

2 testing. 3 26. With respect to Kassim’s vaccination card, USCIS found that because the card 4 did not show Petitioner’s name or any evidence of parentage, it was insufficient evidence of 5 the claimed biological relationship. Id. at 3. 6 27. As to Kassim’s school records, USCIS explained that because, inter alia, the 7 records did not show Petitioner’s name, and because it was unclear if the records were 8 issued at or near the time of attendance, these records did not establish parentage. Id. 9 28. USCIS also considered the affidavit of Petitioner’s business partner, who 10 claimed to have witnessed Kassim’s birth, but because no additional evidence was submitted 11 to corroborate the affiant’s claims, his affidavit was given low weight. Id. 12 29. On March 5, 2018, Petitioner filed a form I-130 petition for alien relative for 13 the benefit of Plaintiff SFM, a minor and citizen/resident of Yemen, as his alleged daughter. 14 Dkt # 24-2 at 62-70. 15 30. On March 24, 2020, USCIS issued a RFE requesting such secondary evidence 16 as governmental, medical, religious, school, financial, employment, insurance or residential 17 records that reflected the names of both SFM and Petitioner, family photographs with 18 notations indicating the persons photographed, as well as the date and place they were taken, 19 and correspondence referring to Petitioner and SFM, and any evidence the civil authorities 20 independently corroborated the biological relationship between Petitioner and SFM. Dkt # 21 24-1 at 11. The RFE also encouraged voluntary DNA testing to establish the biological 22 relationship between the two. Dkt # 24-1 at 10-12. 23 31. Petitioner did not produce any of the requested photographs or 24 correspondence, and did not produce any evidence that the Yemeni civil authorities 25 independently corroborated any biological relationship between Petitioner and Plaintiff 26 SFM. Id. at 14-48. 27 32. In response to the RFE, Petitioner provided copies of SFM’s vaccination card 2 correspondence or photographic evidence of a father-daughter relationship was submitted by 3 Petitioner. Id. at 14-48. 4 33. Petitioner also submitted the affidavit of his business partner Mohamed 5 Daiban, who allegedly also witnessed the birth of SFM, but again, without the above 6 secondary corroborative evidence, the affidavit was only accorded minimal probative 7 weight. Id. at 11. 8 34. The SFM Petition was denied on June 30, 2020 on the grounds that while 9 USCIS considered SFM’s birth certificate, pursuant to the Department of States’ Foreign 10 Affairs Manual, Yemeni birth certificates are unreliable and therefore should be supported 11 by the oldest available secondary evidence that Petitioner was the father of SFM. Id. at 2. 12 35. Furthermore, USCIS’ denial letter reflects that USCIS considered the 13 proffered vaccination card and school records of SFM but because they lacked Petitioner’s 14 name, and the school records did not contain a date of issue or any independent verification 15 of SFM’s biological parentage by the school, this evidence was not considered sufficient. 16 Id. at 3. 17 36. The Yemeni Guidance, issued on May 28, 2012, during the Obama 18 Administration, states that civil documents issued in Yemen to establish claimed familial 19 relationships, such as marriage certificates, birth certificates and death certificates, are 20 generally based on information furnished by an interested party. Dkt # 25-1 at 1 (citing 21 Department of State Yemen Reciprocity Schedule). 22 37. The Yemeni Guidance also states that “the use of Yemeni civil documents in 23 the verification of familial relationships created in Yemen pose fraud and U.S. national 24 security concerns.” Id. at 4. 25 38. Indeed, the Department of State has recommended that such Yemeni 26 documents should be given no more weight than affidavits if presented in support of a 27 relationship claim. Id. 1 39. Nevertheless, the Yemeni Guidance emphasizes that each case must be 2 || decided individually based on the evidence of record. Id. at 12. 3 40. Appendix A to the Yemeni Guidance also states that most Yemenis do not 4 || register births, marriages, divorces, or deaths when they occur. Id. at 19. If there is a need 5 || for such civil records, Yemenis generally prepare “court judgments.” Id. at 19, 40. 6 || Information in these documents is often based on the testimony of an informant or their 7 || proxy, and witnesses who may or may not have direct knowledge of the events about which 8 || they testify. Id. 9 41. Thus, dates in these Yemeni documents are suspect and the Yemeni courts 10 || make no attempt to independently verify the testimony of the informants and witnesses. Id. 11 || Therefore, USCIS gives such court judgments no more weight than affidavits if presented in 12 || support of a relationship claim. Id. 13 42. Pursuant to the Yemeni Guidance, USCIS cannot deny a visa petition due to 14 || the failure to provide DNA samples and the failure to do so is not considered a derogatory 15 || factor. Dkt # 25-1 at 3, 5. 16 43. In 2021, American consulates and embassies abroad experienced delays in the 17 || collection of DNA evidence. See Mulhi v. Mayorkas, 2023 WL 1967892 at * 5 (E.D. Mich. 18 || Feb. 13, 2023); https://www.uscis.gov/archive/uscis-response-to-covid-19. 19 OT. Conclusions of Law 20 1. Under the APA, a court shall hold unlawful and set aside agency actions found 21 || to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 22 | 5 U.S.C. § 706(2)(A). A court is not empowered by the APA to substitute its judgment for 23 || that of the agency. See Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 F.3d 1468, 1471 24 |] (9th Cir. 1994). 25 2. Under APA review, the agency’s factual findings are reviewed for substantial 26 || evidence, and the Court will not disturb the agency’s findings unless the evidence presented 27 || would compel a reasonable finder of fact to reach a contrary result. See Alarcon-Serrano v. 28 || INS, 220 F.3d 1116, 1119 (9th Cir. 2000). Substantial evidence is more than a mere scintilla

1 || but less than a preponderance of evidence and is such relevant evidence as a reasonable 2 || mind might accept as adequate to support a conclusion. See Turcios v. INS, 821 F.2d 1396, 3 || 1398 (9th Cir. 1987) (internal citation omitted). Even if it could be argued that the evidence 4 || is susceptible of more than one rational interpretation, the Court must affirm the agency’s 5 || determination. See San Luis & Delta-Mendoza Authority v. Jewell, 747 F.3d 581, 601 (9th 6 || Cir. 2014) (citation omitted). 7 3. In visa petition proceedings, the petitioner has the burden of establishing 8 || eligibility for the benefits sought. See 8 U.S.C. § 1361; Matter of Brantigan, 11 I & N Dec. 9 | 493 (BIA 1966). Furthermore, non-contemporancous records are not entitled to conclusive 10 || weight. See In re Bueno-Almonte, 21 I & N Dec. 1029, 1033 (BIA 1997). Here, the 11 || Petitioner’s evidence does not compel the conclusion that the alleged marriage between 12 || Petitioner and Ms. Ali was bona fide. 13 4. Petitioner also failed to meet his burden of establishing paternity for Kassim 14 |) and SFM. See Matter of Ho, 191 & N Dec. 582, 592 (BIA 1988) (it is incumbent on the 15 |) petitioner to resolve any inconsistencies in the record by independent objective evidence). 16 || Therefore, the Court will not substitute its judgment for that of USCIS. See Nw. Motorcycle 17 || Ass’n, 18 F.3d at 1471. 18 5. Neither the Ninth Circuit, nor the Supreme Court, has definitively stated the 19 || proper standard of scrutiny in every immigration context. See United States v. Carrillo- 20 || Lopez, 68 F4th 1133, 1142 (9th Cir. 2023). However, in Trump v. Hawaii, 585 U.S. 667, 21 || 704 (2018), the Court indicated that the proper standard of scrutiny, in cases concerning the 22 || entry of foreign nationals, should be rational basis review. Under this deferential standard, a 23 || federal policy survives an equal protection challenge if there is a rational relationship 24 || between a disparity in treatment and some legitimate governmental purpose.” United States 25 || v. Ayala-Bello, 995 F.3d 710, 715 (9th Cir. 2021) (citation omitted); Ursack, Inc. v. Sierra 26 || Interagency Black Bear Group, 639 F.3d 949, 958 (9th Cir. 2011) (the rational basis 27 || standard is analogous to the “arbitrary and capricious” standard under the APA). 28

1 6. To the extent that Plaintiffs allege that their petitions were subject to a higher 2 || scrutiny because they are from Yemen, as even Petitioner admitted, Yemeni civil records are 3 || particularly susceptible to error and fraud. See Alamakalani v. McAleenan, 527 F. Supp. 3d 4 || 205, 217 219-20 (E.D.N.Y. 2021). Thus, the Court finds that there was a rational 5 || relationship between the Yemeni Guidance and the legitimate government purpose of 6 || maintaining the immigration system and securing against fraud. Id. (finding Yemeni 7 || Guidance to be rational). 8 7. USCIS had discretion to determine what evidence was credible and what 9 | weight should be given to that evidence. See 8 C.F.R. 204.1(f)(1)). Accordingly, USCIS’ 10 || reliance on the Yemeni Guidance was not contrary to law. See Almakalani, 527 F. Supp. 3d 11 } at 220. 12 8. With respect to Plaintiffs’ due process challenge, after Petitioner responded to 13 || the RFEs, “USCIS nonetheless denied those petitions, the agency listed each piece of 14 |) additional evidence and explained pieced-by-piece why that evidence failed to meet [his] 15 | burden.” Thus, Petitioner received all the process to which he was due. See Abdulla v. 16 |} Cuccinelli, 840 F. App’x 827, 840 (6th Cir. 2020). 17 9. To the extent Plaintiffs argue that the delay in collecting DNA was somehow a 18 || violation of the APA, there is no evidence in the record that the decision to suspend DNA 19 | collections during the peak of the COVID-19 pandemic was in any way arbitrary or 20 || capricious. See Mulhi 2023 WL 1967892 at * 5. 21 10. Accordingly, the Court finds in favor of the Defendants and denies Plaintiffs 22 || any relief. The Court will issue a Judgment consistent with these Findings of Fact and 23 || Conclusions of Law. 24 IT IS SO ORDERED. 25 fee □ 26 || DATED: September 25, 2024 TH Li Caclee ercy Anderson 27 UNITED STATES DISTRICT JUDGE 28