* The Honorable George Caram Steeh, United States District Judge for the Eastern District of Michigan, sitting by designation. RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206

File Name: 06a0020p.06


### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

A BASS B ANGURA ; I SATU B ANGURA ; A BASS B ANGURA
, J R ., and A BUBAKAR B ANGURA
, Plaintiffs-Appellants,

v.

M ARK H ANSEN , District Director, United States Department of Homeland Security; T ODD S MITH
, United States Deportation Officer, United States Department of Homeland Security; T HOMAS R IDGE
, Secretary, United States Department of Homeland Security, Defendants-Appellees. 

### X - - - -

> 

### , - - - - - - - - - - N No. 04-3531

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 03-00241—Edmund A. Sargus, Jr., District Judge.

Argued: September 15, 2005

Decided and Filed: January 18, 2006

Before: CLAY and GIBBONS, Circu it Judges; STEEH, District Judge. *

_________________ COUNSEL

ARGUED: E. Dennis Muchnicki, Dublin, Ohio, for Appellants. Andrew M. Malek, UNITED STATES ATTORNEY, Columbus, Ohio, for Appellees. ON BRIEF: E. Dennis Muchnicki, Dublin, Ohio, for Appellants. Christopher R. Yates, UNITED STATES ATTORNEY, Columbus, Ohio, for Appellees.

1No. 04-3531 Bangura, et al. v. Hansen, et al. Page 2

_________________ OPINION

_________________ CLAY, Circuit Judge. Plainti ffs Abass and Isatu Bangura appeal an order of the United States District Court for the Southern District of Ohio dismissing their complaint against Defendants Mark Hansen, the District Director of the Department of Homeland Security, Bureau of Citizenship and Immigration Services, Deportation Officer Todd Smith, and th en-Secretary of the Department of Homeland Security Thomas Ridge for failure to exhaust administrative remedies and failure to state a claim. Plaintiffs allege that Defendants’ denial of Plaintiff Abass Bangura’s spousal immigration petition, as well as Defendants’ denialof Don Chisley’s spousal immigration petition made on behalf of Plaintiff Isatu Bangura, viol ate the Due Process Clause of the Fourteenth Amendment and were contrary to the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101, et seq. , in violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706

. For the reasons set forth below, we AFFIRM the district court’s dismissal of Plaintiffs’ claims.

I. BACKGROUND

A. Procedural History

Plaintiffs Abass and Isatu Bangura filed the instant lawsuit on March 19, 2003, claiming violations of the INA, the APA, and the Due Process Clause of the Fourteenth Amendment in connection with Defendants’ denial of Aba ss Bangura’s spousal immigration petition made on behalf of his wife, Isatu Bangura. On May 20, 2003, Defendants moved to dismiss Plaintiffs’ complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, or in the alternative, under Federal Ruleof Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. The district court issued an opinion and order on March 22, 2004, granting Defendants’ motion to dismiss. Plai ntiffs filed a timely noti ce of appeal with this Court on April 19, 2004.

B. Substantive Facts

The Banguras have been married for six years. They have two children and are expecting a third. This marriage, however, is Mrs. Bangura’s third marriage. Prior to marrying Mr. Bangura, Mrs. Bangura was married to Ibrahim Sesay, a citizen of Sierra Leone, and Don Chisley, an American citizen. Mrs. Bangura met her first husband, Ibrahim Sesay, while visiting the United States on a sixth month tourist vi sa in 1991. Her marriage to Sesay was apparently brief, and on March 30, 1993, she married Chisley.

Two months after Chisley and Mrs. Ba ngura married, Chisley filed an I-130 spousal immigration petition with the Immigration and Natu ralization Service (“INS”), seeking to classify Mrs. Bangura as the spouse of a United States citizen. Chisley’s I-130 petition stated that Mrs. Bangura and Sesay were divorced on July 12, 1991. The INS requested a copy of the divorce decree from Mrs. Bangura’s marriage to Sesay, and Ch isley provided a document entitled “Certificate of Final Divorce” from the National Mosque of Freetow n in Sierra Leone. After being informed by the American Embassy in Sierra Leone that the National Mosque of Freetown did not exist and that all divorce decrees are in English and Arabic, the INS determined that the divorce decree was fraudulent. Furthermore, a check with Chisley’ s employers established that Chisley had informed them he was single and provided them with a differe nt address for himself than the one he had given to the INS as his marital address. Accordingly, on February 6, 1998, the INS concluded, “from the foregoing and from the lack of joint personal properties, liquid assets, and liabilities that yourNo. 04-3531 Bangura, et al. v. Hansen, et al. Page 3

marriage to the beneficiary is merely a poorly reh earsed attempt to evade the immigration laws for the purpose of obtaining benefits.” IN S Priv. Ltr. Rul. A72-725-743 (Feb. 6, 1998).

The INS gave Chisley 90 days to submit additional evidence; however, Chisley did not respond. On April 22, 1998, Mrs. Ba ngura sent a letter to the INS requesting that Chisley’s I-130 application be withdrawn because she and Chisley had separated. Mrs. Bangura now claims that she ended her marriage to Chisley after learning that he fathered a child out of wedlock and concealed it from her. The INS issued a final denial of Chisley’s petition on June 12, 1998, without responding to Mrs. Bangura’s request. The INS sent a letter to Mrs. Bangura on October 20, 1998, informing her of the formal denial of Chisley’s petition but without indicating the reason for the denial.

Mrs. Bangura and Chisley were divorced in Maryland on February 1, 1999. Subsequently, on February 23, 1999, Mrs. Bangura married Mr. Bangura, who is a naturalized United States citizen. Mr. Bangura filed an I-130 spousal immigration petition on behalf of Mrs. Bangura on May 11, 1999. The INS denied Mr. Bangura’s petition on July 5, 2001, citing the earlier fraud finding from Chisley’s petition: “The record is clear that the beneficiary had entered into a prior marriage for the purpose of evading the immigration laws. Accordingly, the petition you file d cannot be approved, as the beneficiary is statutorily ineligible for the benefit sought.” INS Priv. Ltr. Rul. A72-725-743 (July 5, 2001) (emphasis in original). Mr. Bangura filed an administrative appeal from this decision, which is apparently still pending.

In addition to filing an administrative app eal of the denial of Mr. Bangura’s spousal immigration petition, Plaintiffs filed the instant lawsuit in the district court. They contend that their rights were violated when Ohio district director of the Department of Homeland Security, Mark Hansen, used the 1998 fraud finding to deny Mr. Bangura’s petition. Plaintiffs argue that the administrative rules prohibit them from appealing the 1998 decision to the Board of Immigration Appeals (“BIA”), and thus, collateral use of the 1998 fraud finding deprives them of procedural due process, interferes with their marriage in violation of substantive due process, and is contrary to the INA in violation of the APA. Plaintiffs al so claim that the 1998 fraud finding was not supported by substantial evidence.

Defendants moved to dismiss Plaintiffs’ complaint on the ground that the district court lacked subject matter jurisdiction because Mr. Bangura has failed to exhaust administrative remedies on his I-130 petition, and on the ground that th e complaint failed to state a claim for relief. Thereafter, the district court dismissed Plaintiffs’ procedural due process claim holding that although Plaintiffs’ failure to exhaust administrative reme dies on the INS’ denial of his I-130 petition did not deprive the court of subject matter jurisdiction, it nonetheless rendered the exercise of its own jurisdiction inappropriate for reasons of judicialeconomy. Additionally, the district court rejected Plaintiffs’ substantive due process claim based on the fundamental right to marriage on the ground that Plaintiff failed to state a claim. According to the district court, the issue is not whether Mrs. Bangura has a right to marry, but rather, whether she has a right to be granted legal residency through her marriage to Mr. Bangura. Plaintiffs now appeal the district court’s ruling.No. 04-3531 Bangura, et al. v. Hansen, et al. Page 4

1 We address exhaustion under jurisdiction because Defe ndants argue that Plaintiffs’ failure to exhaust administrative remedies deprives this Court of subject matter jurisdiction. Thus, this Court must address whether failure to exhaust deprives this Court of jurisdiction as a threshold matter. Steel Co. v. Citizens For a Better Env’t , 523 U.S. 83, 94-95 (1998) (citing Mansfield, C. & L.M.R. Co. v. Swan , 111 U.S. 379, 382 (1884)) (“The requirement that jurisdiction be established as a threshold matter ‘spring[s] from the nature and limits of judicial power of the United States’ and is ‘inflexible and without exception.’”). We not e, however, that exhaustion is primarily a prudential doctrine and failure to exhaust only deprives this Court of s ubject matter jurisdiction when exhaustion is required by a jurisdictional statute. Perkovic v. INS , 33 F.3d 615, 619 (6th Cir. 1994). II. DISCUSSION

A. Plaintiffs’ Constitutional Claims

1. Standard of Review

This Court reviews a district court’s order dismissing a claim for lack of jurisdiction or failure to state a claim de novo. Inge v. Rock Fin. Corp. , 281 F.3d 613, 619 (6th Cir. 2002); Haio v. INS , 199 F.3d 302, 304 (6th Cir. 1999).

2. Analysis

a. Jurisdiction 1

The Plaintiffs’ failure to exhaust their admini strative remedies does not deprive this Court or the district court of subject matter jurisdicti on, and the district court abused its discretion in dismissing Plaintiffs’ constitutional claims for failureto exhaust their administrative remedies in the name of judicial economy. Where a statute requires a plaintiff to exhaust his or her administrative remedies before seeking judicial review, federal courts do not have subject matter jurisdiction to review the plaintiff's claim until the plaintiff has exhausted his or her administrative remedies. Perkovic v. INS , 33 F.3d 615, 619 (6th Cir. 1994) (stating thatwhile exhaustion is prudential in most cases, it is jurisdictional where Congress has placed it in the statute granting federal courts jurisdiction). “However, the Supreme Court has long held that . . . the exhaustion requirement is far from absolute. Of paramount importance to any exhaustion inquiry is congressional intent. . . . [W]here Congress has not clearly required e xhaustion, sound judicial discretion governs.” Dixie Fuel Co. v. Comm’r of Social Security , 171 F.3d 1052, 1058-59 (6th Cir. 1999) (quoting McCarthy v. Madigan , 503 U.S. 140, 144 (1992)). Exhaustion of administrative remedies may not be required in cases of non-frivolous constitutional challenges to an agency’s procedures. S. Ohio Coal Co. v. Office of Surface, Mining, R eclamation and Enforcement, 20 F.3d 1418, 1425 (6th Cir. 1994)

. In the immigration context, several circuits have indicated that “constitutional challenges to the INA and INS procedures and some due process claims do not require exhaustion because the BIA does not have the power to adjudicate these claims.” Sundar v. INS , 328 F.3d 1320, 1325 (11th Cir. 2003) (citing Bernal-Vallejo v. INS , 195 F.3d 56, 64 (1st Cir. 1999); Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir. 1999); Mojsilovic v. INS , 156 F.3d 743, 748 (7th Cir. 1998); Rashtabadi v. INS , 23 F.3d 1562, 1567 (9th Cir. 1994)).

In this case, the district court erred in holding that Plaintiffs were required to exhaust their administrative remedies before filing in federal court. It is undisputed that no statute or administrative rule required Plaintiffs to exhaust their administrative remedies. See 8 § C.F.R. 103.3(a)(ii) (providing that a petitioner “may” appeal to the BIA); Hoang v. Comfort , 282 F.3d 1247, 1254 (10th Cir. 2002), abrogated on other grounds

, Demore v. Kim , 538 U.S. 510 (2003) (noting that the INA only requires plaintiffs to exhaust administrative remedies in removal proceedings). Thus, whether Plaintiffs should be required to exhaust their administrative remedies is a matter of sound judicial discretion. See Dixie Fuel Co. , 171 F.3d at 1058-59. Here, requiring Plaintiffs toNo. 04-3531 Bangura, et al. v. Hansen, et al. Page 5

exhaust their administrative remedies does not serve the interests of judicial economy. Although the BIA undoubtedly could grant Plaintiffs some relief and possibly render Plaintiffs’ procedural due process claim moot, it does not have the authority to adjudicate Plaintiffs’ substantive due process claim. Akninwumni , 194 F.3d at 1341. Moreover, as discussed infra at Section II, this Court must address the merits of one of Plainti ffs’ APA claims. It does not serve the interests of judicial economy to dismiss Plaintiffs’ claims for failure to exhaust when the federal courts must nonetheless hear other claims that are integrally related to the dismissed claims. Therefore, the district court abused its discretion in dismissing Plaintiffs’ procedural due process claim for failure to exhaust administrative remedies.

b. Failure to State a Claim

i. Substantive Due Process

The district court correctly held that Plain tiffs failed to state a claim for relief based on substantive due process. Generally, a plaintiff ad equately alleges a substantive due process claim where the plaintiff pleads that a statute or government action burdens a fundamental right and cannot withstand strict scrutiny. Kallstrom v. City of Columbus , 136 F.3d 1055, 1064 (6th Cir. 1998):

. Montgomery v. Carr , 101 F.3d 1117, 1124 (6th Cir. 1996) (holding that government actions interfering with marriage are subject to strict scrutiny). In immigration cases, however, federal courts apply a much more deferential standard of review to substantive due process challenges even where the immigration law interferes witha plaintiff’s fundamental rights. Fiallo v. Bell , 430 U.S. 787, 798-99 (1977). This Court upholds immigration statutes so long as they are “conceivably related to the achievement of a federal interest.” Almario v. Att’y General , 872 F.2d 147, 152 (6th Cir. 1989) (denying equal protection claim that involved the “fundamental right” to marry); see also Anetekhai v. INS , 876 F.2d 1218,1222 (5th Cir. 1989) (applying “minimum scrutiny” to a substantive due process claim that involved the right to marry); Barmo v. Reno 899 F. Supp. 1375, 1381 (E.D. Pa. 1995) (holding a st atute need only be “supported by facially legitimate and bona fide reason” where it burdened the right to marry). This standard may be even lower than rational basis review. Fiallo, 430 U.S. at 798-99 (1977). In Fiallo, the Supreme Court stated,

Appellants suggest that the distinction drawn in s [sic] 101(b)(1)(D) is unconstitutional under any standard of review since it infringes upon the constitutional rights of citizens and legal pe rmanent residents without furthering any legitimate governmental interest . . . . Those are admittedly the consequences of the congressional decision not to accord preferential status to this particular class of aliens, but the decision nonetheless remains one solely for the responsibility of Congress and wholly outside the power of this Court to control. . . . [I]t is not the judicial role in cases of this sort to probe and test the justifications for the legislative decision.

Id. (internal citations omitted) . But see Azizi v. Thornburgh , 908 F.2d 1130, 1133 n.2 (2d Cir. 1990) (stating that the facially legitimate and bona fide reason test is the same as the rational basis test).

The limited role of courts in reviewing the substantive policy embodied in immigration statutes derives from the Constitution’s grant of plen ary power to exclude aliens to Congress. See, e.g., Landon v. Plasencia, 459 U.S. 21, 32 (1982) (noting that analien’s initial admission into the United States is a privilege and wholly withinthe sovereign’s power to exclude aliens); Fiallo , 430 U.S. at 792; Galvan v. Press , 347 U.S. 522, 529, 531-32 (1954) (holding that while aliens may receive procedural due process, the court’s ability to review the substantive policy of immigration statutes is limited to review for rationality). The Supreme Court has “long recognized the power to expel or exclude aliens as a fundamental sovere ign attribute exercised by the Government's political departments largely immune from judicial control. . . . [T]he power over aliens is of a politicalNo. 04-3531 Bangura, et al. v. Hansen, et al. Page 6

character and therefore subject to only narrow judicial review.” Fiallo , 430 U.S. at 792 (citations omitted).

In this case, the statute in question, 8 U.S.C. § 1154(c), easily withst ands this deferential standard of review. Section 1154(c) denies aliens immediate relative visas when they marry American citizens for the purpose of obtaining U. S. residence. 8 U.S.C. § 1154(c). Congress presumably enacted § 1154(c) to prevent immigrati on fraud, which is a legitimate federal interest. Thus, § 1154(c) is “conceivably related to a federal interest,” and this Court must uphold its constitutionality even assuming Plaintiffs have established that it interferes with their fundamental right to marry. See Almario , 872 F.2d at 152.

ii. Procedural Due Process

Similarly, Plaintiffs failed to a state a procedur al due process claim because Plaintiffs failed to properly allege a liberty or property intere st. The Fourteenth Amendment prohibits the government from depriving persons of “life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. The Due Process Clause protects aliens physically present in the United States as well as citizens. Landon, 459 U.S. at 32-33 ; Mathews v. Diaz , 426 U.S. 67, 77 (1976). Due process rights only attach, however, once a plai ntiff asserts a liberty or property interest. See also Almario , 872 F.2d at 151. To establish a liberty or property interest, the plaintiff must demonstrate that the Constitution or a federal or state statute grants him a protected right

. See Almario , 872 F.2d at 151.

In this case, Plaintiffs assert that the Cons titution grants them a liberty interest in their marriage, and thus, that the government must gi ve them due process before denying Mrs. Bangura a visa. While this Court recognizes that the Banguras have a fundamental right to marry, it does not agree with Plaintiffs’ characterization of the natureof the government’s infringement. A denial of an immediate relative visa does not infringe upon their right to marry. As this Court stated in Almario , “[t]he Constitution does not recognize the right of a citizen spouse to have his or her alien spouse remain in the country.” Almario , 872 F.2d at 151.

Plaintiffs’ procedural due process claim in this case is indistinguishable from the claim that this Court rejected in Almario. In Almario , this Court addressed a challenge to 8 U.S.C. § 1154(h), which requires an alien who marries an American citizen while in deportation proceedings to live outside the United States for two years before the alien's spouse is permitted to apply for an immediate relative visa. Id. The plaintiffs in Almario argued that 8 U.S.C. § 1154(h) infringed upon their procedural due process rights because it presumed that their marriage was fraudulent without giving them the opportunity to prove otherwise. Id. This Court rejected the plaintiffs’ argument stating that “[t]he Constitution does not recognize the right of a citizen spouse to have his or her alien spouse remain in the country.” Id.

While Almario rejected a procedural due process claim predicated on the right to marry, it did not address whether 8 U.S. C. §§ 1151 and 1154 create a property interest protected by the Due Process Clause. The issue of whether §§ 1151 and 1154 creates a protected interest in an immediate relative visa, however, is not before th is Court. Plaintiffs’ complaint does not clearly allege that the INA creates a protected interest. Similarly, neither Plaintiffs’ answer to Defendants’ motion to dismiss nor any of their briefs on appeal argue that the INA creates a protected interest. Plaintiffs attempt to raise the issue during oral arguments is insufficient to present it for appellate review. See Fed. R. App. Pro. 28(a)(5) (requiring appellants to raise all issues in their briefs);No. 04-3531 Bangura, et al. v. Hansen, et al. Page 7

2 There is a decent amount of support for the proposition th at §1154(b) creates an interest to which procedural due process rights attach. Supreme Court precedent makes clear that non-discretionary statutes create property interests for the purpose of procedural due process. Town of Castle Rock v. Gonzales , 125 S. Ct. 2796, 2803 (2005) (citing Board of Regents of State Colleges v. Roth , 408 U.S. 564, 577 (1997)). Section 1154(b) states that the Attorney General, “ shall

. . . approve the petition [for immediate relative visa].” 8 U. S.C. § 1154(b) (emphasis added). The D.C. circuit explicitly held that this language created a right protected by procedural due process. Escobar v. INS , 896 F.2d 564 (D.C. Cir. 1990). Additionally, Fifth Circuit dicta implied that it would uphold a due process claim under § 1154(b). Anetekhai v. INS , 876 F.2d 1218, 1223 (5th Cir. 1989). In rejecting a subs tantive due process challenge to §1154(h), the section at issue in Almario , the court stated, “[c]ertainly, if Congress had conditioned an alien's eligibility for a status adjustment on the existence of a bona fide marriage, procedural due process would require that the couple be given an opportunity to establish that fact before an adjustment could be denied.” Id. If this right exists, however, it clearly belongs to the citizen spouse and not the alien spouse. Wright v. INS, 379 F.2d 275, 276 (6th Cir. 1967) (holding that an alien spouse has no protected interest in an I-130 petition). Bickel v. Korean Air Lines Co. , 96 F.3d 151, 153 (6th Cir. 1996). T hus, this Court need not decide the issue. 2

B. Plaintiffs’ APA Claims

The district court held that Pl aintiffs waived their APA claims. Because we find that the Plaintiffs did not waive their APA claims, we a ddress issues not discussed by the district court, namely, Defendants’ contentions that: (1) this court lacks subject matter jurisdiction because Plaintiffs failed to exhaust their administrative reme dies; (2) Plaintiffs lack standing to bring their APA claims; and (3) Plaintiffs fail to state a claim under the APA. Because we find that Mr. Bangura does not have standing to challenge the deni al of Chisley’s petition, that neither Plaintiff states a claim for relief based on the denial of Mr. Bangura’s petition, and that Mrs. Bangura loses on the merits of her challenge to Chisley’s petiti on, we affirm the district court’s dismissal of Plaintiffs’ APA claims.

1. Standard of Review

This Court reviews a district court’s dismissal for failure to prosecute under the abuse of discretion standard. Carver v. Bunch , 946 F.2d 451, 452 (6th Cir. 1991). We review all other issues de novo because the district court did not reach them.

2. Analysis

a. Waiver or Failure to Prosecute

The district court abused its discretion in hol ding that Plaintiffs waived their APA claims. In a footnote in its opinion, the district court disposed of all of Pl aintiffs’ APA claims. The district reasoned that Plaintiffs waived the APA claims by failing to address them in Plaintiffs’ response to defendant’s motion to dismiss. In Carver v. Bunch , this Court held that a district court abused its discretion in dismissing a plaintiff’s claims solely because the plaintiff failed to respond to the defendant’s motion to dismiss for failure to state a claim. 946 F.2d at 452. It reasoned that such a dismissal was akin to a dismissal for failure to prosecute, and thus, governed by the standard set forth in Rule 41 of the Federal Rules of Civil Procedure. Id. It then determined that in order for a district court to dismiss a plaintiff’s claims in response to a 12(b)(6) motion, the district court must “conclude ‘beyond a doubt that the plaintiff can prove no set of facts in s upport of his claim which would entitle him to relief,’” regardle ss of whether the plaintiff responded. Id. (quoting Haines v. Kerner , 404 U.S. 519 (1972)). Analogizing to a summary judgment motion, the court also noted that the Federal Rules of Civil Procedure place the burden on the moving party to demonstrate that the plaintiff failed to state a claim for relief. Id. at 454-55. In this case, the district court failed to address whether Plaintiff’s complaint stated a cl aim for relief under the AP A and dismissed the APA claims solely because Plaintiffs failed to respond to Defendant’s motion. T hus, the district court’s dismissal rested on impermissible grounds.No. 04-3531 Bangura, et al. v. Hansen, et al. Page 8

3 Nonetheless, this Court can address Plaintiffs’ failure to state a claim because this Court may uphold a district court’s order on any ground supported by the record. City Mgmt. Corp. v. U.S. Chemical Corp ., 43 F.3d 244, 251 (6th Cir. 1994). Moreover, the factual basis underlying the district court’s determination that Plaintiffs waived their APA claims is clearly erroneous. The district court stat es that Plaintiffs “fail to even mention [their APA claims] in their Memorandum.” (Op. & Or. Granting Mot. to Dismiss, March 23, 2003.) In fact, half of Plainti ffs’ memorandum in response to Defendants’ motion to dismiss is devoted to their APA claims and rebutting Defe ndants’ contention that Plaintiffs do not have standing to seek judicial review for their APA claims.

Finally, the district court erroneously placed the burden on Plaintiffs to demonstrate that they stated a claim for relief. As noted above, this Court has determined that on a 12(b)(6) motion, the moving party bears the burden of demonstrating th at the plaintiff failed to state a claim. Carver , 946 F.2d at 455. In this case, Defendants did not argue in their memorandum in support of their motion to dismiss that Plaintiffs failed to state a clai m for relief under the APA. Instead, Defendants argued that the court lacked subject matter jurisdiction to hear any of Plaintiffs’ cl aims and that Plaintiffs failed to state a substantive or procedural due pr ocess claim. Because Defendants did not offer a single argument to support their assertion that Plaintiffs failed to state a claim for relief under the APA, Defendants failed to meet their burden of pr oof, and the district court should have dismissed Defendants’ motion. 3

b. Failure to Exhaust Administrative Remdies

Plaintiffs’ failure to exhaust their administrative remedies does not deprive this court of subject matter jurisdiction over Plaintiffs’ APA cl aims. The law governing the exhaustion of APA claims differs from that governi ng exhaustion in other contexts. It is governed by 5 U.S.C. § 704; Darby v. Cisneros , 509 U.S. 137, 146-47 (1993)

. Section 704 only requires a plaintiff to exhaust his or her administrative remedies where a statute or agency rule makes the remedies mandatory. Id. ; see also Dixie Fuel Co. , 171 F.3d at1059. Where an intra-agency appeal is optional, however, the APA does not require a plaintiff to appeal prior to filing suit in federal court. Darby , 509 U.S. at 147 (“Section [704] explicitly requires exhaustion of all intra-agency appeals mandated either by statute or by agency rule; it would be inconsistent with the plain language of § [704] for courts to require litigants to exhaust optional appeals as well.”)

In this case, it is undisputed that the INA and its implementing regulations do not require Plaintiffs to exhaust their administrative remedies before seeking review in federal court. 8 C.F.R. § 103.3(a)(ii) (providing that a party “may” appeal to the BIA). This is because Plaintiffs do not appeal an order of removal but the denial of spous al immigration petition. Incontrast to orders of removal, the INA does not require aliens to appeal denials of spousal immigration petitions to the BIA before seeking relief in federal court. Compare id. with8 U.S.C. § 1252(d)(1) (requiring aliens to appeal to BIA before appealing an order of removal in federal c ourt). Therefore, this Court does not have the authority to require Plaintiffs to appeal to the BIA before bringing their claims under the APA in federal court.No. 04-3531 Bangura, et al. v. Hansen, et al. Page 9

4 The government’s argument that only the citizen spouse has “standing” to appeal to the BIA under the INA is irrelevant to Plaintiffs’ standing to su e in federal district court under the APA. Ghaly v. INS , 48 F.3d 1426, 1434 n.6 (7th Cir. 1995). The cases the government cites discuss the authority of the BIA to hear an appeal from a non-citizen. Id.; In re Sano , 19 I.&N. Dec. 299 (BIA 1985). They do not address the authority of a federal court to hear claims. Ghaly , 48 F.3d at 1434 n.6. Instead, the issue of standing under th e APA is governed by an extensive body of Supreme Court case law. See infra ; Ghaly , 48 F.3d at 1434 n.6. c. Standing

Section 10 of the APA grants all parties “advers ely affected or aggrieved” by a final agency action prudential standing to bring suit in federal court. 4 5 U.S.C. § 702. A person is “adversely affected or aggrieved” within the meaning of the APA if his or her claim meets the “zone of interest”

test. Nat’l Credit Union Admi n. v. First Nat’l Bank , 522 U.S. 479, 487-90 (1998) (emphasis in original) (holding that the APA incorpor ates the “zone of interest” test); Fed. Election Comm’n v. Akins , 524 U.S. 11, 19-20 (1998) (holding that Congress waives all prudential limitations on standing except for “the zone of interest” test when it grants “aggrieved” parties the right to sue). To meet the requirements of the “zone of interest test,” a plaintiff must establish that the interest he or she seeks to protect, “is arguablywithin the zone of interests to be protected [] by the statute” under which the plaintiff sues. Nat’l Credit Union Admin ., 522 U.S. at 492. The Supreme Court has repeatedly emphasized that the “zone of interest ” test does not require a plaintiff to establish that Congress specifically intended to benefit the plaintiff. Id.; see also Clarke v. Security Indus. Ass’n, 479 U.S. 388, 399-400 (1987) (“‘[the] zone of interest’ test is a guide for deciding whether, in view of Congress' evident intent to make agency acti on presumptively reviewable, a particular plaintiff should be heard to complain of a particular agency decision. In cases where the plaintiff is not itself the subject of the contested regulatory action, the te st denies a right of review if the plaintiff's interests are so marginally related to or inconsiste nt with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit. The te st is not meant to be especially demanding; in particular, there need be no indication of congressional purpose to benefit the would-be plaintiff. ”); Courtney v. Smith , 297 F.3d 455, 461 (6th Cir. 2002). Rather, the “zone of interest” test entails a two part inquiry. First, the court must determine what interests the statute arguablywas intended to protect, and second, the court must determine whether the “plaintiff’s interests affected by the agency ac tion in question are among them.” Nat’l Credit Union Admin.

, 522 U.S. at 492; see also Courtney , 297 F.3d at 461.

In this case, both Plaintiffs’ interests fall within the 8 U.S.C. §§ 1151(a)’s and 1154(a)’s “zone[s] of interest,” and thus, both Plaintiffs have prudential standing to sue under the APA. Congress enacted the immediate relative visa as a part of the Immigration Reform Act of 1965. S. Rep. No. 748 (1965), as reprinted in 1965 U.S.C.C.A.N. 3328, 3341. The Immigration Reform Act of 1965 replaced a quota system based on national origin with a system based on preferences to relatives of U.S. citizens and aliens legally residing in the United States. Id. at 3329. The new system aims to prevent family members from being separated. Id. at 3332. “Reunification of families is to be the foremost consideration . . . . In order that the family unit can be preserved as much as possible, parents of adult U.S. citizens, as well as spouses and children, may enter the country without numerical limitation.” Id. Because the interest both Plai ntiffs seek to protect – the preservation of their family unit – is the prim ary interest the INA’s immediate relative visa provisions were designed to protect, both Plainti ffs’ interests fall within the 8 U.S.C. § 1151(a)’s and 1154(a)’s zone of interest.

Although Mrs. Bangura, as an alien, probably cannot claim that Congress intended to specifically benefit her by enacting 8 U.S. C. §§ 1151 and 1154, whether Congress intended to benefit aliens is not relevant to this court’s inquiry. See Nat’l Credit Union Admin. , 522 U.S. at 492. The relevant inquiry is whether Congress intende d to insure that spouses of American citizens could live in the United States with their families. See id. Thus, the fact that Mrs. Bangura is an alien does not deprive her of th e right to sue under the APA. Ghaly v. INS , 48 F.3d 1426,1434 n.6No. 04-3531 Bangura, et al. v. Hansen, et al. Page 10

(7th Cir. 1995) (holding that immigrant beneficiary of an employer’s visa application fell within the visa statute’s “zone of interest,” and thus, had standing to challenge the visa’s revocation under the APA); Taneja v. Smith , 795 F.2d 355, 358 n.7 (4th Cir. 1986) (same).

Nonetheless, while both Plaintiffs are “advers ely affected” within th e meaning of the APA, Mr. Bangura does not have constitutional standing to challenge the INS’s denial of Chisley’s petition. Article III standing requires that a plaintiff suffer injury-in-fact that is fairly traceable to the defendant’s illegal conduct and redresssable by the requested relief. Allen v. Wright , 468 U.S. 737, 750 (1984). Mr. Bangura does not allege any injury-i n-fact that is fairly traceable to the INS’s denial of Chisley’s petition. See id. The denial did not deprive Mr . Bangura of any legal right. Additionally, it did not result in the loss of his wi fe’s company because denial of Chisley’s petition did not result in the deportation of Mrs. Bangura. Finally, it did not cause the denial of Mr. Bangura’s petition. It was not the actual denial of Chisley’s petiti on that prejudiced Mr. Bangura’s petition but the alleged co llateral use of that decision in the DHS’ denial of Mr. Bangura’s own petition. This collateral use is properly characteri zed as a part of DHS’s denial of Mr. Bangura’s petition and not the INS’s denialof Chisley’s petition. Furthermore, to the extent Mr. Bangura alleges injury-in-fact through the collateral use of the INS’s denial of Chisley’s petition, it is not redressable through a challenge to Chisley’s petition. To grant relief with respect to the alleged collateral use of the 1998 fraud finding, this Court w ould have to reverse the DHS’s denial of Mr. Bangura’s petition. Thus, we find that Mr. Ba ngura does not have constitutional standing to challenge the denial of the INS’s denial of Chisley’s petition.

d. Failure to State a Claim

To state a claim for relief under the APA, a plain tiff must allege that his or her injury stems from a final agency action for which there is no other adequate remedy in court. 5 U.S.C. § 704; Gillis v. U.S. Dep’t of Health and Human Servs. , 759 F.2d 565, 575 (6th Cir. 1985.) Because the INS’s denial of Chisley’s petition is a final agency action, for which there is no other adequate remedy in court, Mrs. Bangura states a claim for relief under the APA. Neith er Plaintiff, however, can challenge the DHS’s denial of Mr. Bangura’s petition under the APA because Mr. Bangura’s pending appeal renders the decision non-final.

i. Finality

An action is final where it: (1) marks the “c onsummation of the agency’s decision-making process;” and (2) determines rights and oblig ations or occasions legal consequences. Bennett v. Spear, 520 U.S. 154, 177-78 (1997); Airbrake Sys., Inc. v. Mineta , 357 F.3d 632, 639 (6th Cir. 2004). Additionally, the APA defines final action to include:

agency action otherwise final . . . whether or not there has been presented or determined an application for . . . any fo rm of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority.

5 U.S.C. § 704. The Supreme Court has noted in dicta , however, that this “language has long been construed by this and other courts merely to relieve parties from the requirement of petitioning for a rehearing before seeking judicial review . . . but not to preven t petitions for reconsideration that are actually filed from rendering the orders under reconsideration non final.” Interstate Com. Comm’n v. Bhd. of Locomotive Eng’rs , 482 U.S. 270, 284-85 (1987).

In this case, Plaintiffs alle ge three purported final agency actions: (1) the INS’s denial of Chisley’s petition; (2) the DHS’s denial of Mr . Bangura’s petition; and (3) the 1998 fraud finding. Only the INS’s denial of Chisley’s petition is a fi nal agency action under the APA. The INS’s denial of Chisley’s petition is final because it markedthe consummation of the INS’s decision-makingNo. 04-3531 Bangura, et al. v. Hansen, et al. Page 11

process with regard to Chisley’s visa petition, and it determined the right of Chisley to a spousal visa for Mrs. Bangura. See Bennett , 520 U.S. at 177-78.

Although the same reasoning applied to the DHS ’s initial denial of Mr. Bangura’s petition, Mr. Bangura’s decision to take his optional appeal rendered the earlier decision non-final. Bhd. of Locomotive Eng’rs , 482 U.S. at 284. While the language of the APA quoted above admittedly seems to require a different outcome – “whether or not there has been presented . . . an application for . . . any form of reconsideration” – the Supreme Court and D.C. Circuit have determined that it does not. Id. ; Outland v. Civil Aeronautics Bd. , 284 F.2d 224, 227 (D.C. Cir. 1960). Thus, this Court defers to their interpretation of § 704.

In contrast, the 1998 fraud finding was never a final decision. It did not mark the consummation of the INS’s decision-making process. See Bennett , 520 U.S. at 177-78. Once the INS determined that Chisley’s marriage was fraudul ent, the INS was still required to determine the legal consequences of its factual finding under the INA. The application of the law to the factual findings resulted in a final action: the INS’s denial of Chisley’s petition.

ii. No Other Adequate Remedy

Finally, Mrs. Bangura has no other adequate remedy to challenge the INS’s denial of Chisley’s petition. Section 704’s requirement that there be no other “adequate remedy in court” insures that the APA’s general grant of jurisdicti on to review agency decisions is not duplicative of more specific statutory procedures for judicial review. See Bowen v. Massachusetts , 487 U.S. 879, 903 (1988) (noting that provisions provi ding for appeal directly to fede ral courts of appeal or panels of district court judges could not be avoided by suing under the APA)

. The essential inquiry is whether another statutory scheme of judicial revi ew exists so as to preclude review under the more general provisions of the APA. Id. This inquiry differs from th e exhaustion inquiry in that the focus of this inquiry is not on available administrative remedies, but on available federal court remedies. Compare Bowen , 487 U.S. at 903 (discussing § 704’s requirement that there be no other “adequate remedy in court” ) with Darby, 509 U.S. at 145-46 (discussing § 704’s exhaustion requirement)

. As the INA does not specifi cally provide for federal court review of denials of visa petitions, there is no other adequate remedy incourt that would pr eclude APA review. See generally , 8 U.S.C. §§ 1151-1378 (not providing for appeal s to district courts from denials of immediate relative visa petitions); 8 C.F.R. §§ 1- 499 (same). Thus, Mrs. Bangura states a claim under the APA based on the INS’s denial of Chisley’s petition, and the district court correctly dismissed all other APA claims.

e. Merits of Plaintiffs’ APA Claims

As discussed above, Plaintiffs’ can only stat e a claim for relief based upon the INS’s denial of Chisley’s petition, and only Mrs. Bangura has constitutional standi ng to challenge that decision. Thus, this Court only needs to address the merits of Mrs. Bangura’s challenge to the INS’s denial of Chisley’s petition. Because we find that the IN S did not violate the APA or the INA in denying Chisley’s petition, we affirm the district c ourt's dismissal of Mrs. Bangura’s APA claim.

i. Standard of Review under the APA

The APA directs courts to review agency actions under a deferential standard. Carabell v. U.S. Army Corp. of Eng’rs, 391 F.3d 704, 707 (6th Cir. 2004); N.E. Ohio Reg. Sewer Dist. v. Env’t Prot. Agency, 411 F.3d 726, 731 (6th Cir. 2003). A court may not set aside or hold unlawful an agency action unless that action is arbitrary, capri cious, an abuse of discre tion or otherwise not in accordance with law. 5 U.S.C.§ 706(2)(A); see also Carabell , 391 F.3d at 707; N.E. Ohio Reg. Sewer Dist. , 411 F.3d at 731. An agency decision is arb itrary and capricious if the agency fails to examine relevant evidence or articulate a satisfactory explanation for the decision. Motor VehiclesNo. 04-3531 Bangura, et al. v. Hansen, et al. Page 12

Mfrs. Ass’n v. State FarmMut. Auto. Ins. Co., 463 U.S. 29, 42-43 (1983). The reviewing court “may not supply a reasoned basis for the agency's action that the agency itself has not given.” Id. at 43. However, “[e]ven when an agency explains its decision with less than ideal clarity, a reviewing court will not upset the decision on that account if the agency’s path may reasonably be discerned.” Alaska Dep’t of Env’t Conservation v

. EPA , 540 U.S. 461, 497 (2004).

ii. The INA And Its Implementing Regulations

In addition to arbitrary and capricious review, the APA authorizes courts to review agency actions for conformity with law. 5 U.S.C.§ 706(2)(A); see also Carabell , 391 F.3d at 707; N.E. Ohio Reg. Sewer Dist. , 411 F.3d at 731. In this case, the rele vant law is contained in the INA and its implementing regulations, which govern petitions for immediate relative visas. In particular, the issues in this case revolve around the application of § 204(c) of the INA, which requires the Attorney General to deny a visa petition made on behalf of any alien whom the Attorney General determines “previously [] accorded or [] sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States . . . by reas on of a marriage determined by the Attorney General to have been entered into for the purpose of evading immigration laws.” 8 U.S.C. § 1154(c). Under the INA, a dete rmination of marriage fraud made pursuant to § 204(c) must be supported by substantial and probative evidence. In re Agninaoay, 16 I.&N. Dec. 545, 546 (BIA 1978); In re Tawfik , 20 I.&N. Dec. 166, 167 (BIA 1990). Ther efore, this Court must overturn any finding of marriage fraud not supported by substantial and probative evidence.

iii. The INS’s Denial of Chisley’ s Petition Did Not Violate the APA or the INA

The INS did not violate the AP A when it denied Chisley’s pe tition for a spousal visa because the denial was not arbitrary and capricious and was supported by substantial evidence. The denial was not arbitrary and capricious because the INS supplied Chisley with a reasoned explanation. As the INS explained, the evidence indicated that Mrs. Bangura’s marriage to Chisley was fraudulent, and thus, the INA requi red it to deny Chisley's petition. Furthermore, the INS’s factual finding of fraud was supported by substantial and probative evidence. Mrs. Bangura’s divorce decree from her first marriage appeared to be fr audulent. Next, Chisley and Mrs. Bangura were not living together. Additionally, Chisley and Mrs. Bangura did not own joint property. While Mrs. Bangura may offer a different explanation for these facts, an alternative explanation does not negate the reasonableness of the INS’s fi nding of fraud. Finally, the Bangur as point to no provision of the INA that the INS violated in denying Chisley’s pe tition. Therefore, we fi nd that Mrs. Bangura does not prevail on the merits of her APA claim and affirm the district court’s dismissal.

III. CONCLUSION

For the reasons set forth above, we AFFIRM the district court’s dismissal of all of Plaintiffs’ claims.