18‐3298‐cv

Ahmed v. Cuccinelli

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

          

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.  CITATION TO A SUMMARY

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE

OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1.  WHEN CITING A

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE

FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ).  A

PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED

BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in

the City of New York, on the 18th day of February, two thousand twenty.

PRESENT:   DENNIS JACOBS,

    GUIDO CALABRESI,

    DENNY CHIN,

    Circuit Judges.

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THANI AHMED, ALI YAHYA, BASHAR YAHYA,

SUAAD YAHYA, ABU MOBAREZ, HASNA

MOBAREZ, TAREQ ALJAHMI, EMAN ALGAHMI,

YAHYA ALJAHMI, JABRA NAJI, BASHEER AL‐

KHADER, JULIE ALI, HUSSEIN MOHAMEN,

SALEH MOHAMED, MOMENAH ALSADI,

AIDAH MOFLEH, AMIRA AL‐GAADI, WASSIM

AL‐GAADI, ESHRAK AL‐GAADI, INTISAR

MOFLEHI, MANSOUR AL‐GAADI, ANSAM

MOHAMMED, ABDULQAWI MOHAMMED,

KHALED MOHAMMED, ABDULCAFI

MOHAMMED,

     Plaintiffs‐Appellants,          

    ‐v‐             18‐3298‐cv   
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KENNETH T. CUCCINELLI, Director of United

States Citizenship and Immigration Services, SARAH

SHERGILL, United States Citizenship and

Immigration Services Rome Field Office Director,

JOSEPH LANGOLIS, Europe Middle East and Africa

District Director, UNITED STATES EMBASSY IN

DJIBOUTI, UNITED STATES EMBASSY IN

ETHIOPIA, UNITED STATES EMBASSY IN SUDAN,

UNITED STATES DEPARTMENT OF STATE,

OFFICE OF THE UNITED STATES ATTORNEY,

WILLIAM BARR, in his official capacity as Attorney

General of the United States,  

Defendants-Appellees.

*

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FOR PLAINTIFFS‐APPELLANTS: JULIE A. GOLDBERG, Goldberg and

Associates, Bronx, New York.  

FOR DEFENDANTS‐APPELLEES:   LI YU, Assistant United States Attorney

(Benjamin H. Torrance, Assistant United States

Attorney, on the brief), for Geoffrey S. Berman,

United States Attorney for the Southern

District of New York, New York, New York.

Appeal from the United States District Court for the Southern District of

New York (Failla, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Director of U.S.

Citizenship and Immigration Services Kenneth T. Cuccinelli, II is substituted for former Director

Lee Francis Cissna, and current Rome Field Office Director Sarah Shergill is substituted forformer

Field Office Director Laurie O’Bryon.  The Clerk of Court is respectfully directed to amend the

caption as set forth above.  
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    Plaintiffs‐appellants (ʺplaintiffsʺ) are members of seven families originally

from Yemen.  They include U.S. citizens and lawful permanent residents who wish to

bring family members in Djibouti to the United States.  Plaintiffs brought this action to

compel the United States Citizenship and Immigration Services (ʺUSCISʺ) and the U.S.

Embassies in Djibouti and Malaysia to accept and adjudicate I‐130 petitions filed by U.S.

citizen and lawful permanent resident petitioners on behalf of Yemeni family members.  

They assert claims under the Declaratory Judgment Act, 28 U.S.C. § 2201; the

Mandamus Act, 28 U.S.C. § 1361; the Administrative Procedure Act, codified in part at 5

U.S.C. ch. 5; and the Fifth Amendment to the U.S. Constitution.  They contend that

USCISʹs procedures for filing and adjudicating I‐130 petitions are unlawful, and they

seek to compel USCIS to send staff to Djibouti and Malaysia to process petitions there.  

    The district court issued an opinion and order on August 31, 2018

granting the motion of defendants‐appellees (ʺdefendantsʺ) to dismiss the amended

complaint pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject‐matter jurisdiction and

Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted.  

Judgment dismissing the action was entered the same day, and this appeal followed.  

We assume the partiesʹ familiarity with the underlying facts, procedural history, and

issues on appeal.   

    This Court reviews the grant of a Rule 12(b)(1) motion for clear error as to

factual findings and de novo as to legal conclusions.  See Filetetch S.A. v. France Telecom
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S.A., 157 F.3d 922, 930 (2d Cir. 1998).   We review ʺde novo a district courtʹs grant of a

motion to dismiss under Rule 12(b)(6).ʺ  Littlejohn v. City of New York, 795 F.3d 297, 306

(2d Cir. 2015).  ʺOn a motion to dismiss, all factual allegations in the complaint are

accepted as true and all inferences are drawn in the plaintiffʹs favor.ʺ  Id. at 306.  The

complaint must plead ʺenough facts to state a claim to relief that is plausible on its face,ʺ 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and ʺallow[] the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged,ʺ Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009).   

    Upon an independent review of the record, we affirm substantially for the

reasons set forth in the district courtʹs thorough and carefully considered opinion.  We

add only the following:

    The district court did not err in finding that plaintiffsʹ claims were not ripe

for review, for they have not filed their I‐130 petitions by mail, USCIS has the discretion

to waive the requirement that a petitioner travel to the United States for an in‐person

interview, and USCIS routinely approves I‐130 petitions without an in‐person

interview.  It is not at all apparent that if plaintiffs apply by mail, they will suffer the

purported feared injury of being required to travel to the United States.  ʺTo be

justiciable, a cause of action must be ripe ‐‐ it must present a real, substantial

controversy, not a mere hypothetical question.ʺ  Natʹl Org. for Marriage, Inc. v. Walsh, 714

F.3d 682, 687 (2d Cir. 2013) (internal quotation marks omitted).  Since these grounds are
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sufficient to decide the case, we need not consider defendantsʹ political question

arguments.

    In any event, the district court did not err in holding that plaintiffs failed

to show any basis for requiring consular officers to accept I‐130 petitions in certain

embassies.  USCIS enjoys broad discretion in its processing of I‐130 petitions, and it is

constrained by neither the Immigration and Nationality Act (ʺINAʺ) nor the

implementing USCIS regulations in this respect.  See 8 U.S.C. § 1154(a)(1)(A); 8 C.F.R. §

204.1(b).  Indeed, while USCIS may delegate the authority to accept I‐130 petitions to

the State Departmentʹs consular officers on a case‐by‐case basis or, in exceptional

circumstances, by issuing a blanket authorization, its decision to do so is discretionary.  

Indeed, even where USCIS issues a blanket authorization, the Department of State

ʺretains its own discretion to allocate and prioritize its resources.ʺ  Appʹx at 25.    

*     *     *

We have considered plaintiffsʹ remaining arguments and conclude they

are without merit.  Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT:

     Catherine OʹHagan Wolfe, Clerk