Case Information
*1 Before: CLAY and GIBBONS, Circuit 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.
_________________
OPINION
_________________
CLAY, Circuit Judge. Plaintiffs 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 then-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 immigratiоn petition, as well as Defendants’ denial of Don Chisley’s spousal immigration petition made on behalf of Plaintiff Isatu Bangura, violate 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 Abass 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 Rule of 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. Plaintiffs filed a timely notice 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 visa in 1991. Her marriage to Sesay was apparently brief, and on March 30, 1993, she married Chisley.
Two months after Chisley and Mrs. Bangura married, Chisley filed an I-130 spousal immigration petitiоn with the Immigration and Naturalization 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 Chisley provided a document entitled “Certificate of Final Divorce” from the National Mosque of Freetown 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 hе was single and provided them with a different 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 your marriage to the beneficiary is merely a poorly rehearsed attempt to evade the immigration laws for the purpose of obtaining benefits.” INS 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. Bangura 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 сhild 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 pеtition you filed 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 appeal 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, interfеres with their marriage in violation of substantive due process, and is contrary to the INA in violation of the APA. Plaintiffs also 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 the 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 remedies on the INS’ denial of his I-130 petition did not deprive the court of subject matter jurisdiction, it nonetheless rendered the exercisе of its own jurisdiction inappropriate for reasons of judicial economy. 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.
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.
,
2. Analysis
a.
Jurisdiction
[1]
The Plaintiffs’ failure to exhaust their administrative remedies does not deprive this Court
or the district court of subject matter jurisdiction, and the district court abused its discretiоn in
dismissing Plaintiffs’ constitutional claims for failure to 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
,
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 Plаintiffs 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
,
b. Failure to State a Claim
i.
Substantive Due Process
The district court correctly held that Plaintiffs failed to state a claim for relief based on
substantive due process. Generally, a plaintiff adequately 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
,
In immigration cases, however, federal
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
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 permanent 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
,
The limited role of courts in reviewing the substantive policy embodied in immigration
statutes derives from the Constitution’s grant of plenary power to exсlude aliens to Congress.
See,
e.g., Landon v. Plasencia,
In this case, the statute in question, 8 U.S.C. § 1154(c), easily withstands 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 immigration 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
,
ii.
Procedural Due Process
Similarly, Plaintiffs failed to a state a procedural due process claim because Plaintiffs failed
to properly allege a liberty or property interest. 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,
In this case, Plaintiffs assert that the Constitution grants them a liberty interest in their
marriage, and thus, that the government must give 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 nature of the government’s infringemеnt. 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
,
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 withоut 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 this Court. Plaintiffs’ complaint does not clearly
allege that the INA creates a protected interest. Similarly, neither Plaintiffs’ answer to Defendants’
motion to dismiss nor аny 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);
Bickel v. Korean Air Lines Co.
,
The district court held that Plaintiffs waived their APA claims. Because we find that the Plaintiffs did not waive their APA claims, we address 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 remedies; (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 denial 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 petition, 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
,
2. Analysis
a. Waiver or Failure to Prosecute
The district court abused its discretion in holding that Plaintiffs waived their APA claims.
In a footnote in its opinion, the district court disposed of all of Plaintiffs’ 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 rеspond to the
defendant’s motion to dismiss for failure to state a claim.
Moreover, the factual basis underlying the district court’s determination that Plaintiffs waived their APA claims is clearly erroneous. The district court states 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 Plaintiffs’ memorandum in response to Defendants’ motion to dismiss is devoted to their APA claims and rebutting Defendants’ 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 that 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 claim for relief under the APA. Instead, Defendants argued that the court lacked subject matter jurisdiction to hear any of Plaintiffs’ claims and that Plaintiffs failed to state a substantive or procedural due process 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 proof, 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 claims. The law governing the exhaustion of APA
claims differs from that governing exhaustion in other contexts. It is governed by 5 U.S.C. § 704;
Darby v. Cisneros
,
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 spousal immigration petition. In contrast 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. with 8 U.S.C. § 1252(d)(1) (requiring aliens to appeal to BIA before appealing an order of removal in federal court). 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.
c.
Standing
action prudential standing to bring suit in federal court.
[4]
5 U.S.C. § 702. A person is “adversely
Section 10 of the APA grants all parties “adversely affected or aggrieved” by a final agency
affected or aggrieved” within the meaning of the APA if his or her claim meets the “zone of interest”
test.
Nat’l Credit Union Admin. v. First Nat’l Bank
,
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 havе 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 Plaintiffs seek to protect – the рreservation of their family unit – is the primary interest the INA’s immediate relative visa provisions were designed to protect, both Plaintiffs’ 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.
,
Nonetheless, while both Plaintiffs are “adversely affected” within the 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-in-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 wife’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 petition that prejudiced Mr. Bangura’s petition but the alleged collateral use of that decision in the DHS’ denial of Mr. Bangura’s own petition. This collateral use is properly characterized as a part of DHS’s denial of Mr. Bangura’s petition and not the INS’s denial of 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 would have to reverse the DHS’s denial of Mr. Bangura’s petition. Thus, we find that Mr. Bangura does not have constitutional standing to challenge the denial of the INS’s dеnial of Chisley’s petition.
d.
Failure to State a Claim
To state a claim for relief under the APA, a plaintiff 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.
,
i.
Finality
An action is final where it: (1) marks the “consummation of the agency’s decision-making
process;” and (2) determines rights and obligations or occasions legal consequences.
Bennett v.
Spear,
agency action otherwise final . . . whether or not there has been presented or
determined an application for . . . any form 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 prevent petitions for reconsideration that
are actually filed from rendering the orders under reconsiderаtion non final.”
Interstate Com.
Comm’n v. Bhd. of Locomotive Eng’rs
,
In this case, Plaintiffs allege 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 final agency action under the APA. The INS’s denial
of Chisley’s petition is final because it marked the consummation of the INS’s decision-making
process with regard to Chisley’s visa petition, and it determined the right of Chisley to a spousal visa
for Mrs. Bangura.
See Bennett
,
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
,
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
,
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 thеre be no other “adequate remedy in court”
insures that the APA’s general grant of jurisdiction to review agency decisions is not duplicative of
more specific statutory procedures for judicial review.
See Bowen v. Massachusetts
,
e. Merits of Plaintiffs’ APA Claims As discussed above, Plaintiffs’ can only state a claim for relief based upon the INS’s denial of Chisley’s petition, and only Mrs. Bangura has constitutional standing 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 INS did not violate the APA or the INA in denying Chisley’s petition, we affirm the district court'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,
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
,
iii. The INS’s Denial of Chisley’s Petition Did Not Violate the APA or the INA
The INS did not violate the APA when it denied Chisley’s petition for a spousаl 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 required 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 fraudulent. 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 finding of fraud. Finally, the Banguras point to no provision of the INA that the INS violated in denying Chisley’s petition. Therefore, we find 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.
Notes
[*] The Honorable George Caram Steeh, United States District Judge for the Eastern District of Michigan, sitting by designation.
[1]
We address exhaustion under jurisdiction because Defendants 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
,
[2]
There is a decent amount of support for the proposition that §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
,
[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
.,
[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 sue in federal district court under the APA.
Ghaly v. INS
,