Mohamed v. Jaddou
U.S. District Court, District of Minnesota
Mohamed v. Jaddou
Trial Court Opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
RABI AWIL MOHAMED,
Civil No. 23-902 (JRT/LIB)
Plaintiff,
v.
MEMORANDUM OPINION AND ORDER
UR M. JADDOU and RENA BITTER, DENYING DEFENDANTS’ MOTION TO
DISMISS
Defendants.
Alexandra Zaretsky, INTERNATIONAL REFUGEE ASSISTANCE PROJECT, One
Battery Park Plaza, Thirty-Third Floor, New York, NY 10004; Melissa Shay
Keaney, INTERNATIONAL REFUGEE ASSISTANCE PROJECT, PO Box 2291,
Fair Oaks, CA 95628; and Marc Prokosch, PROKOSCH LAW LLC, 1700 West
Highway Thirty-Six, Suite 570, Roseville, MN 55113, for Plaintiff.
Bahram Samie, UNITED STATES ATTORNEY’S OFFICE, 300 South Fourth
Street, Suite 600, Minneapolis, MN 55415, for Defendants.
Plaintiff Rabi Awil Mohamed came to the United States as a refugee in 2015 and
has been seeking derivative refugee status via I-730 petitions for his family since arrival.
After filing his initial Complaint, United States Customs and Immigration Service (“USCIS”)
approved his I-730 petitions and sent them to the Department of State (“DOS”) for
processing in Ethiopia. Mr. Mohamed maintains an unreasonable delay claim against Ur
M. Jaddou, Director of USCIS, and Rena Bitter, Assistant Secretary of State for Consular
Affairs (collectively the “defendants”). USCIS argues that by approving and sending the
petitions to DOS, any claims against Director Jaddou are moot because USCIS can take no
further action. DOS then argues that upon the dismissal of the claims against USCIS, Mr.
Mohamed’s unreasonable delay claim against Secretary Bitter fails to state a claim upon
which relief can be granted. Because the claims against Director Jaddou are not moot
and Mr. Mohamed has pled sufficient facts to sustain a claim of unreasonable delay, the
Court will deny the defendants’ Motion to Dismiss.
BACKGROUND
I. FACTS
Plaintiff Rabi Awil Mohamed came to Minnesota from Ethiopia in 2015 as a
refugee. (Am. Compl. ¶¶ 13–14, July 12, 2023, Docket No. 11.) Before fleeing Ethiopia,
Mr. Mohamed met and married his wife Sahra Abdi Abdulahi in the Ethiopian refugee
camp. (Id. ¶¶ 16, 18.) Together, they have three sons; one who was born before Mr.
Mohamed left Ethiopia, and two others born since he resettled in Minnesota. (Id. ¶¶ 19,
82, 85.) Mr. Mohamed’s wife and their three sons still live in the Ethiopian refugee camp.
(Id. ¶ 6.) Since leaving Ethiopia, Mr. Mohamed has been able to return only once to visit
his family. (Id. ¶ 84.)
Shortly after arriving in Minnesota, Mr. Mohamed submitted I-730 petitions
seeking derivative refugee status for his wife and two oldest sons.1 (Id. ¶¶ 8, 25.) Mr.
Mohamed submitted the original I-730 petitions in August 2016. (Id. ¶ 52.) Five years
1 Mr. Mohamed’s youngest son could not be included with these original petitions, so a
petition is processing separate from this action and not at issue here. (Id. ¶ 86.)
after submitting the original I-730 Petitions, USCIS asked Mr. Mohamed to submit more
evidence proving his relationship with his wife and sons. (Id. ¶ 56.) In response, Mr.
Mohamed submitted copies of his marriage certificate and birth certificates for each son.
(Id. ¶ 58.) All documents were issued by the Ethiopian Vital Events Statistics Registration
Agency, which USCIS recognizes as a legitimate state agency producing valid documents.
(Id. ¶¶ 58–59.)
In May 2023, USCIS approved Mr. Mohamed’s I-730 petitions for his wife and two
oldest sons. (Id. ¶ 73.) However, his family is still waiting on a determination that they
are admissible and eligible to travel.2 (Id. ¶ 75.)
II. PROCEDURAL HISTORY
Mr. Mohamed filed his initial Complaint in April 2023, before he had heard
anything from USCIS regarding the status of his I-730 petitions. (Compl., Apr. 11, 2023,
Docket No. 1.) After USCIS approved his I-730 petitions in May 2023, Mr. Mohamed filed
an Amended Complaint. (See generally Am. Compl.) Mr. Mohamed’s Amended
Complaint brings claims against Ur M. Jaddou, in her official capacity as Director of USCIS,
and Rena Bitter, in her official capacity as Assistant Secretary of State for Consular Affairs,
claiming that together, the agencies still have not reached a final decision on Mr.
Mohamed’s I-730 petitions. (See id.) Mr. Mohamed seeks an order from the Court
2 The Court is aware that interviews have been scheduled for Mr. Mohamed’s family
members in Ethiopia. This development has no impact on the Court’s Order.
compelling the agencies to adjudicate his I-730 petitions. (Id. ¶ 93.) Director Jaddou and
Secretary Bitter have moved to dismiss the Amended Complaint. (Defs.’ Mot. Dismiss,
July 26, 2023, Docket No. 12.)
DISCUSSION
Defendants move to dismiss this action under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and failure to state a claim.
Neither argument is availing.
I. SUBJECT MATTER JURISDICTION
A. Standard of Review
Article III of the Constitution requires that every matter before a court be a “case
or controversy.” U.S. CONST. art. III, § 2. This requirement must exist throughout all stages
of the case, not just when the case is filed. See Burke v. Barnes, 479 U.S. 361, 363 (1987).
In deciding a motion under Federal Rule of Civil Procedure 12(b)(1), the Court must
first “distinguish between a ‘facial attack’ and a ‘factual attack.’” Osborn v. United States,
918 F.2d 724, 729 n.6 (8th Cir. 1990) (quoting Menchaca v. Chrysler Credit Corp.,613 F.2d 507, 511
(5th Cir. 1980)). When subject matter jurisdiction faces a facial challenge, the factual allegations about jurisdiction are presumed to be true and thus the motion is only successful if there is a failure to allege or plead sufficient jurisdictional facts. Titus v. Sullivan,4 F.3d 590, 593
(8th Cir. 1993) (citation omitted). In a factual attack to subject matter jurisdiction, which the defendants have asserted, the Court “inquires into and resolves factual disputes,” Faibisch v. Univ. of Minn.,304 F.3d 797
, 801 (8th Cir. 2002),3 and is free to consider “matters outside the pleadings,” Osborn,918 F.2d at 729
n.6. The Court may also make factual determinations about whether it may grant the relief requested. Faibisch, 304 F.3d at 801. The nonmoving party in a factual challenge “does not have the benefit of 12(b)(6) safeguards.” Osborn,918 F.2d at 729
n.6. The party invoking federal jurisdiction bears the burden to prove jurisdictional facts by a preponderance of the evidence. Moss. v. United States,895 F.3d 1091, 1097
(8th Cir.
2018).
B. Analysis
Defendants argue that Mr. Mohamed’s claims against Director Jaddou are moot
because USCIS has adjudicated his I-730 petitions and can take no further action. If, “due
to the passage of time or a change in circumstance,” there is no longer a live issue in a
case, that change can “prevent a federal court from granting effective relief” by rendering
a case moot. Ark. AFL-CIO v. FCC, 11 F.3d 1430, 1435 (8th Cir. 1993). Mootness is “a
jurisdictional bar, and must be considered before reaching the merits of the case.” Id.
The mootness determination depends solely on whether USCIS has completed
everything it can do in adjudicating an I-730 petition. The I-730 petition has two distinct
phases. First, USCIS must grant approval of the petition if the principal refugee
3 Overruled in part on other grounds by Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369(2004) and Slayden v. Ctr. for Behav. Med.,53 F.4th 464
, 469 n.4 (8th Cir. 2022). establishes a qualifying relationship such as a spouse or unmarried minor child.8 C.F.R. §§ 207.7
(a), (d). Then, depending on where the principal refugee’s family is located, USCIS will either make travel determinations about the family members or transition the petition to DOS to make those same travel determinations.4Id.
§ 207.7(f)(2); 9 FAM § 203.5-2(b)(3). In the countries where USCIS maintains a field office, there is no question that USCIS is responsible for the I-730 petition until it is denied, or until travel authorization is issued. 9 FAM § 203.5-2(b)(3). Mr. Mohamed’s family, however, is in Ethiopia, where no USCIS field office is located. In countries where USCIS does not maintain a field office, it charges DOS with making the travel eligibility determinations, while reserving the right to review any discrepancies in the petition.8 C.F.R. § 207.7
(f)(2);
9 FAM § 203.5-2(a)(6).
Because of this transfer of duties, USCIS claims that its role in adjudicating Mr.
Mohamed’s I-730 petitions has terminated, such that the Court no longer has jurisdiction
over this claim. USCIS considers its role terminated and DOS considers itself only an agent
of USCIS in making the travel determinations. 9 FAM 203.5-2(a)(6). However, someone
must maintain processing power over I-730 petitions until they are either denied or until
travel authorization is issued. Courts have recently been inclined to find that USCIS
4 USCIS maintains field offices in Nairobi, New Delhi, Beijing, Guangzhou, Havana,
Guatemala City, San Salvador, and Mexico City. USCIS, International Immigration Offices,
https://www.uscis.gov/about-us/find-a-uscis-office/international-immigration-offices, (last
updated Aug. 28, 2023).
cannot escape liability or responsibility by passing off an I-730 petition to DOS. Doe v.
Risch, 398 F. Supp. 3d 647(N.D. Cal. 2019); Salihi v. Blinken, No. 23-718,2023 WL 8007348
(S.D. Cal. Nov. 17, 2023).
In Doe v. Risch, the court granted the plaintiffs’ motion for summary judgment and
issued an order compelling adjudication of plaintiffs’ I-730 petition within 30 days. 398 F.
Supp. 3d at 659. The court made this determination after USCIS approved the I-730
petition and DOS interviewed the beneficiary, but no final decision had been made. Id. at
653. The Court did not separate the I-730 petition adjudication process into two distinct
agency actions, but rather only dealt with it as one process and found a two-and-a-half-
year delay unreasonable. Id. at 659.
In Salahi v. Blinken, the plaintiff’s story mirrors that of Mr. Mohamed. 2023 WL
8007348, at *1–4. The plaintiff filed an I-730 petition that was originally approved by USCIS and sent to DOS for travel eligibility determinations only after she filed a federal complaint.Id.
USCIS moved to dismiss for lack of subject matter jurisdiction, claiming the action was moot as it had adjudicated the I-730 petition.Id. at *3
. In denying USCIS’ motion to dismiss, the court cited the DOS Foreign Affairs Manual for the proposition that the Department of Homeland Security (“DHS”), and DHS alone, has the authority to adjudicate I-730 petitions.Id. at *4
; 9 FAM 203.5-2(a)(1);8 U.S.C. §§ 1103
(a), 1157(c)(1), 1158;6 U.S.C. § 271
(b)(3).
The Court agrees with these decisions. DHS, through its subsidiary USCIS,
maintains control over the entire adjudication of I-730 petitions. It is difficult to reconcile
that in locations where USCIS maintains a field office, no transfer of responsibility occurs
but where USCIS does not have a field office, its responsibility fully transfers to DOS with
the petition. The Court finds no reason that Mr. Mohamed’s family should suffer simply
because of the geographic area in which they reside. As such, the Court will conclude that
the claims against Director Jaddou are not moot as USCIS maintains jurisdiction over the
I-730 petitions until they are either denied or until travel authorization has been issued,
neither of which has occurred here.
II. FAILURE TO STATE A CLAIM
A. Standard of review
In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the
Court considers all facts alleged in the complaint as true to determine if the complaint
states a “claim to relief that is plausible on its face.” Braden v. Wal-Mart Stores, Inc., 588
F.3d 585, 594(8th Cir. 2009) (quoting Ashcroft v. Iqbal,556 U.S. 662, 678
(2009)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,556 U.S. at 678
. The Court construes the complaint in the light most favorable to the plaintiff, drawing all inferences in the plaintiff’s favor. Ashley Cnty., Ark. v. Pfizer, Inc.,552 F.3d 659, 665
(8th Cir. 2009). Although the Court accepts the complaint’s factual allegations as true and construes the complaint in a light most favorable to the plaintiff, it is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain,478 U.S. 265, 286
(1986). In other words, a complaint “does not need detailed factual allegations” but must include “more than labels and conclusions, and a formulaic recitation of the elements” to meet the plausibility standard. Bell Atl. Corp. v. Twombly,550 U.S. 544, 555
(2007).
At the motion to dismiss stage, the Court may consider the allegations in the
Amended Complaint as well as “those materials that are necessarily embraced by the
pleadings.” Schriener v. Quicken Loans, Inc., 774 F.3d 442, 444(8th Cir. 2014). The Court may also consider matters of public record and exhibits attached to the pleadings, as long as those documents do not conflict with the Amended Complaint. Porous Media Corp. v. Pall Corp.,186 F.3d 1077, 1079
(8th Cir. 1999).
B. Analysis
Defendants argue that the claim of unreasonable delay against Secretary Bitter
fails to state a claim upon which relief can be granted. Defendants base their argument
on the assumption that the claims against Director Jaddou are moot, and that because
DOS received the I-730 petitions just a few months ago, Mr. Mohamed cannot possibly
sustain a claim of unreasonable delay against Secretary Bitter. However, as discussed
above, the Court finds that the claims against Director Jaddou are not moot. As a result,
the clock began to run at the initial filing of the I-730 petitions, which was over seven
years ago. Courts have found significantly shorter delays to constitute unreasonable
delay. Al-Rifahe v. Mayorkas, 776 F. Supp. 2d 927, 937 n.8 (D. Minn. 2011) (collecting
cases that found unreasonable delay after three and four years). Accordingly, Mr.
Mohamed has pled sufficient facts to sustain a claim for unreasonable delay against
Director Jaddou and Secretary Bitter to survive defendants’ Motion to Dismiss.
CONCLUSION
Mr. Mohamed submitted his I-730 petitions seeking derivative refugee status for
his wife and sons over seven years ago. After he filed a federal complaint for
unreasonable delay, USCIS approved his I-730 petitions, but still Mr. Mohamed received
no final resolution. Because USCIS approved the petitions and then delegated them to
DOS for travel determinations, USCIS argued that it was released of any further
responsibilities regarding the adjudication process so, any claim against it is moot.
However, the Court finds that USCIS cannot avoid its responsibilities regarding I-730
petitions by delegating part of the adjudication process to DOS. Because the claims
against Director Jaddou are not moot, the clock for unreasonable delay began when the
petitions were filed over seven years ago, and Mr. Mohamed has sufficiently pled a claim
for unreasonable delay. Thus, the Court will deny the defendants’ Motion to Dismiss.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Defendants’ Motion to Dismiss [Docket No. 12] is DENIED.
DATED: February 7, 2024 dO W. (bein
at Minneapolis, Minnesota. JOHN R. TUNHEIM
United States District Judge
-11- Trial Court Opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
RABI AWIL MOHAMED,
Civil No. 23-902 (JRT/LIB)
Plaintiff,
v.
MEMORANDUM OPINION AND ORDER
UR M. JADDOU and RENA BITTER, DENYING DEFENDANTS’ MOTION TO
DISMISS
Defendants.
Alexandra Zaretsky, INTERNATIONAL REFUGEE ASSISTANCE PROJECT, One
Battery Park Plaza, Thirty-Third Floor, New York, NY 10004; Melissa Shay
Keaney, INTERNATIONAL REFUGEE ASSISTANCE PROJECT, PO Box 2291,
Fair Oaks, CA 95628; and Marc Prokosch, PROKOSCH LAW LLC, 1700 West
Highway Thirty-Six, Suite 570, Roseville, MN 55113, for Plaintiff.
Bahram Samie, UNITED STATES ATTORNEY’S OFFICE, 300 South Fourth
Street, Suite 600, Minneapolis, MN 55415, for Defendants.
Plaintiff Rabi Awil Mohamed came to the United States as a refugee in 2015 and
has been seeking derivative refugee status via I-730 petitions for his family since arrival.
After filing his initial Complaint, United States Customs and Immigration Service (“USCIS”)
approved his I-730 petitions and sent them to the Department of State (“DOS”) for
processing in Ethiopia. Mr. Mohamed maintains an unreasonable delay claim against Ur
M. Jaddou, Director of USCIS, and Rena Bitter, Assistant Secretary of State for Consular
Affairs (collectively the “defendants”). USCIS argues that by approving and sending the
petitions to DOS, any claims against Director Jaddou are moot because USCIS can take no
further action. DOS then argues that upon the dismissal of the claims against USCIS, Mr.
Mohamed’s unreasonable delay claim against Secretary Bitter fails to state a claim upon
which relief can be granted. Because the claims against Director Jaddou are not moot
and Mr. Mohamed has pled sufficient facts to sustain a claim of unreasonable delay, the
Court will deny the defendants’ Motion to Dismiss.
BACKGROUND
I. FACTS
Plaintiff Rabi Awil Mohamed came to Minnesota from Ethiopia in 2015 as a
refugee. (Am. Compl. ¶¶ 13–14, July 12, 2023, Docket No. 11.) Before fleeing Ethiopia,
Mr. Mohamed met and married his wife Sahra Abdi Abdulahi in the Ethiopian refugee
camp. (Id. ¶¶ 16, 18.) Together, they have three sons; one who was born before Mr.
Mohamed left Ethiopia, and two others born since he resettled in Minnesota. (Id. ¶¶ 19,
82, 85.) Mr. Mohamed’s wife and their three sons still live in the Ethiopian refugee camp.
(Id. ¶ 6.) Since leaving Ethiopia, Mr. Mohamed has been able to return only once to visit
his family. (Id. ¶ 84.)
Shortly after arriving in Minnesota, Mr. Mohamed submitted I-730 petitions
seeking derivative refugee status for his wife and two oldest sons.1 (Id. ¶¶ 8, 25.) Mr.
Mohamed submitted the original I-730 petitions in August 2016. (Id. ¶ 52.) Five years
1 Mr. Mohamed’s youngest son could not be included with these original petitions, so a
petition is processing separate from this action and not at issue here. (Id. ¶ 86.)
after submitting the original I-730 Petitions, USCIS asked Mr. Mohamed to submit more
evidence proving his relationship with his wife and sons. (Id. ¶ 56.) In response, Mr.
Mohamed submitted copies of his marriage certificate and birth certificates for each son.
(Id. ¶ 58.) All documents were issued by the Ethiopian Vital Events Statistics Registration
Agency, which USCIS recognizes as a legitimate state agency producing valid documents.
(Id. ¶¶ 58–59.)
In May 2023, USCIS approved Mr. Mohamed’s I-730 petitions for his wife and two
oldest sons. (Id. ¶ 73.) However, his family is still waiting on a determination that they
are admissible and eligible to travel.2 (Id. ¶ 75.)
II. PROCEDURAL HISTORY
Mr. Mohamed filed his initial Complaint in April 2023, before he had heard
anything from USCIS regarding the status of his I-730 petitions. (Compl., Apr. 11, 2023,
Docket No. 1.) After USCIS approved his I-730 petitions in May 2023, Mr. Mohamed filed
an Amended Complaint. (See generally Am. Compl.) Mr. Mohamed’s Amended
Complaint brings claims against Ur M. Jaddou, in her official capacity as Director of USCIS,
and Rena Bitter, in her official capacity as Assistant Secretary of State for Consular Affairs,
claiming that together, the agencies still have not reached a final decision on Mr.
Mohamed’s I-730 petitions. (See id.) Mr. Mohamed seeks an order from the Court
2 The Court is aware that interviews have been scheduled for Mr. Mohamed’s family
members in Ethiopia. This development has no impact on the Court’s Order.
compelling the agencies to adjudicate his I-730 petitions. (Id. ¶ 93.) Director Jaddou and
Secretary Bitter have moved to dismiss the Amended Complaint. (Defs.’ Mot. Dismiss,
July 26, 2023, Docket No. 12.)
DISCUSSION
Defendants move to dismiss this action under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and failure to state a claim.
Neither argument is availing.
I. SUBJECT MATTER JURISDICTION
A. Standard of Review
Article III of the Constitution requires that every matter before a court be a “case
or controversy.” U.S. CONST. art. III, § 2. This requirement must exist throughout all stages
of the case, not just when the case is filed. See Burke v. Barnes, 479 U.S. 361, 363 (1987).
In deciding a motion under Federal Rule of Civil Procedure 12(b)(1), the Court must
first “distinguish between a ‘facial attack’ and a ‘factual attack.’” Osborn v. United States,
918 F.2d 724, 729 n.6 (8th Cir. 1990) (quoting Menchaca v. Chrysler Credit Corp.,613 F.2d 507, 511
(5th Cir. 1980)). When subject matter jurisdiction faces a facial challenge, the factual allegations about jurisdiction are presumed to be true and thus the motion is only successful if there is a failure to allege or plead sufficient jurisdictional facts. Titus v. Sullivan,4 F.3d 590, 593
(8th Cir. 1993) (citation omitted). In a factual attack to subject matter jurisdiction, which the defendants have asserted, the Court “inquires into and resolves factual disputes,” Faibisch v. Univ. of Minn.,304 F.3d 797
, 801 (8th Cir. 2002),3 and is free to consider “matters outside the pleadings,” Osborn,918 F.2d at 729
n.6. The Court may also make factual determinations about whether it may grant the relief requested. Faibisch, 304 F.3d at 801. The nonmoving party in a factual challenge “does not have the benefit of 12(b)(6) safeguards.” Osborn,918 F.2d at 729
n.6. The party invoking federal jurisdiction bears the burden to prove jurisdictional facts by a preponderance of the evidence. Moss. v. United States,895 F.3d 1091, 1097
(8th Cir.
2018).
B. Analysis
Defendants argue that Mr. Mohamed’s claims against Director Jaddou are moot
because USCIS has adjudicated his I-730 petitions and can take no further action. If, “due
to the passage of time or a change in circumstance,” there is no longer a live issue in a
case, that change can “prevent a federal court from granting effective relief” by rendering
a case moot. Ark. AFL-CIO v. FCC, 11 F.3d 1430, 1435 (8th Cir. 1993). Mootness is “a
jurisdictional bar, and must be considered before reaching the merits of the case.” Id.
The mootness determination depends solely on whether USCIS has completed
everything it can do in adjudicating an I-730 petition. The I-730 petition has two distinct
phases. First, USCIS must grant approval of the petition if the principal refugee
3 Overruled in part on other grounds by Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369(2004) and Slayden v. Ctr. for Behav. Med.,53 F.4th 464
, 469 n.4 (8th Cir. 2022). establishes a qualifying relationship such as a spouse or unmarried minor child.8 C.F.R. §§ 207.7
(a), (d). Then, depending on where the principal refugee’s family is located, USCIS will either make travel determinations about the family members or transition the petition to DOS to make those same travel determinations.4Id.
§ 207.7(f)(2); 9 FAM § 203.5-2(b)(3). In the countries where USCIS maintains a field office, there is no question that USCIS is responsible for the I-730 petition until it is denied, or until travel authorization is issued. 9 FAM § 203.5-2(b)(3). Mr. Mohamed’s family, however, is in Ethiopia, where no USCIS field office is located. In countries where USCIS does not maintain a field office, it charges DOS with making the travel eligibility determinations, while reserving the right to review any discrepancies in the petition.8 C.F.R. § 207.7
(f)(2);
9 FAM § 203.5-2(a)(6).
Because of this transfer of duties, USCIS claims that its role in adjudicating Mr.
Mohamed’s I-730 petitions has terminated, such that the Court no longer has jurisdiction
over this claim. USCIS considers its role terminated and DOS considers itself only an agent
of USCIS in making the travel determinations. 9 FAM 203.5-2(a)(6). However, someone
must maintain processing power over I-730 petitions until they are either denied or until
travel authorization is issued. Courts have recently been inclined to find that USCIS
4 USCIS maintains field offices in Nairobi, New Delhi, Beijing, Guangzhou, Havana,
Guatemala City, San Salvador, and Mexico City. USCIS, International Immigration Offices,
https://www.uscis.gov/about-us/find-a-uscis-office/international-immigration-offices, (last
updated Aug. 28, 2023).
cannot escape liability or responsibility by passing off an I-730 petition to DOS. Doe v.
Risch, 398 F. Supp. 3d 647(N.D. Cal. 2019); Salihi v. Blinken, No. 23-718,2023 WL 8007348
(S.D. Cal. Nov. 17, 2023).
In Doe v. Risch, the court granted the plaintiffs’ motion for summary judgment and
issued an order compelling adjudication of plaintiffs’ I-730 petition within 30 days. 398 F.
Supp. 3d at 659. The court made this determination after USCIS approved the I-730
petition and DOS interviewed the beneficiary, but no final decision had been made. Id. at
653. The Court did not separate the I-730 petition adjudication process into two distinct
agency actions, but rather only dealt with it as one process and found a two-and-a-half-
year delay unreasonable. Id. at 659.
In Salahi v. Blinken, the plaintiff’s story mirrors that of Mr. Mohamed. 2023 WL
8007348, at *1–4. The plaintiff filed an I-730 petition that was originally approved by USCIS and sent to DOS for travel eligibility determinations only after she filed a federal complaint.Id.
USCIS moved to dismiss for lack of subject matter jurisdiction, claiming the action was moot as it had adjudicated the I-730 petition.Id. at *3
. In denying USCIS’ motion to dismiss, the court cited the DOS Foreign Affairs Manual for the proposition that the Department of Homeland Security (“DHS”), and DHS alone, has the authority to adjudicate I-730 petitions.Id. at *4
; 9 FAM 203.5-2(a)(1);8 U.S.C. §§ 1103
(a), 1157(c)(1), 1158;6 U.S.C. § 271
(b)(3).
The Court agrees with these decisions. DHS, through its subsidiary USCIS,
maintains control over the entire adjudication of I-730 petitions. It is difficult to reconcile
that in locations where USCIS maintains a field office, no transfer of responsibility occurs
but where USCIS does not have a field office, its responsibility fully transfers to DOS with
the petition. The Court finds no reason that Mr. Mohamed’s family should suffer simply
because of the geographic area in which they reside. As such, the Court will conclude that
the claims against Director Jaddou are not moot as USCIS maintains jurisdiction over the
I-730 petitions until they are either denied or until travel authorization has been issued,
neither of which has occurred here.
II. FAILURE TO STATE A CLAIM
A. Standard of review
In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the
Court considers all facts alleged in the complaint as true to determine if the complaint
states a “claim to relief that is plausible on its face.” Braden v. Wal-Mart Stores, Inc., 588
F.3d 585, 594(8th Cir. 2009) (quoting Ashcroft v. Iqbal,556 U.S. 662, 678
(2009)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,556 U.S. at 678
. The Court construes the complaint in the light most favorable to the plaintiff, drawing all inferences in the plaintiff’s favor. Ashley Cnty., Ark. v. Pfizer, Inc.,552 F.3d 659, 665
(8th Cir. 2009). Although the Court accepts the complaint’s factual allegations as true and construes the complaint in a light most favorable to the plaintiff, it is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain,478 U.S. 265, 286
(1986). In other words, a complaint “does not need detailed factual allegations” but must include “more than labels and conclusions, and a formulaic recitation of the elements” to meet the plausibility standard. Bell Atl. Corp. v. Twombly,550 U.S. 544, 555
(2007).
At the motion to dismiss stage, the Court may consider the allegations in the
Amended Complaint as well as “those materials that are necessarily embraced by the
pleadings.” Schriener v. Quicken Loans, Inc., 774 F.3d 442, 444(8th Cir. 2014). The Court may also consider matters of public record and exhibits attached to the pleadings, as long as those documents do not conflict with the Amended Complaint. Porous Media Corp. v. Pall Corp.,186 F.3d 1077, 1079
(8th Cir. 1999).
B. Analysis
Defendants argue that the claim of unreasonable delay against Secretary Bitter
fails to state a claim upon which relief can be granted. Defendants base their argument
on the assumption that the claims against Director Jaddou are moot, and that because
DOS received the I-730 petitions just a few months ago, Mr. Mohamed cannot possibly
sustain a claim of unreasonable delay against Secretary Bitter. However, as discussed
above, the Court finds that the claims against Director Jaddou are not moot. As a result,
the clock began to run at the initial filing of the I-730 petitions, which was over seven
years ago. Courts have found significantly shorter delays to constitute unreasonable
delay. Al-Rifahe v. Mayorkas, 776 F. Supp. 2d 927, 937 n.8 (D. Minn. 2011) (collecting
cases that found unreasonable delay after three and four years). Accordingly, Mr.
Mohamed has pled sufficient facts to sustain a claim for unreasonable delay against
Director Jaddou and Secretary Bitter to survive defendants’ Motion to Dismiss.
CONCLUSION
Mr. Mohamed submitted his I-730 petitions seeking derivative refugee status for
his wife and sons over seven years ago. After he filed a federal complaint for
unreasonable delay, USCIS approved his I-730 petitions, but still Mr. Mohamed received
no final resolution. Because USCIS approved the petitions and then delegated them to
DOS for travel determinations, USCIS argued that it was released of any further
responsibilities regarding the adjudication process so, any claim against it is moot.
However, the Court finds that USCIS cannot avoid its responsibilities regarding I-730
petitions by delegating part of the adjudication process to DOS. Because the claims
against Director Jaddou are not moot, the clock for unreasonable delay began when the
petitions were filed over seven years ago, and Mr. Mohamed has sufficiently pled a claim
for unreasonable delay. Thus, the Court will deny the defendants’ Motion to Dismiss.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Defendants’ Motion to Dismiss [Docket No. 12] is DENIED.
DATED: February 7, 2024 dO W. (bein
at Minneapolis, Minnesota. JOHN R. TUNHEIM
United States District Judge
-11- Reference
- Status
- Unknown