United States District Court, D. Minnesota
Orwa A. and Farok H., Petitioners,
Matthew G. Whitaker,  Lee Francis Cissna, Leslie Tritten, and Kirstjen Nielsen, Respondents.
Herbert A. Igbanugo and Jason A. Nielson, Igbanugo Partners
Int'l Law Firm, PLLC, Minneapolis, MN, for petitioners
Orwa A. and Farok H.
H. Hunt, William C. Peachey, Timothy M. Belsan, and Sergio
Sarkany, U.S. Department of Justice - Civil Division,
Washington, DC, for respondents Matthew G. Whitaker, Lee
Francis Cissna, Leslie Tritten, and Kirstjen Nielsen.
MEMORANDUM OPINION AND ORDER
C. Tostrud Judge
seek de novo review of United States Customs and Immigration
Services (“USCIS”) decisions rejecting
Petitioners' requests to adjust their status as lawful
permanent residents retroactively to August 2002 and denying
their applications for naturalization. This is the
fourth federal case Petitioners have filed challenging agency
action related to their naturalization efforts. The first
case was decided on the merits against Petitioners. The
second was dismissed for failure to exhaust administrative
remedies. Petitioners dismissed their third case voluntarily.
in lieu of filing an answer, Respondents filed a motion to
dismiss the case under Rules 12(b)(1) and 12(b)(6) of the
Federal Rules of Civil Procedure. ECF No. 10. In a nutshell,
Respondents argue that the Court lacks subject-matter
jurisdiction to review USCIS's decisions rejecting
Petitioners' applications for retroactive adjustment to
lawful permanent residency and that a final judgment rendered
on the merits in Petitioners' first federal case
precludes review of their applications for naturalization in
this case. Alternatively, to the extent the Court has
subject-matter jurisdiction, Respondents argue that
Petitioners cannot invoke equitable legal doctrines in this
case to bypass the statutory prerequisites for naturalization
found unmet in Petitioners' first suit. The Court will
grant Respondents' motion.
factual background, administrative procedures, and federal
judicial proceedings leading to this lawsuit date back
roughly twenty years and are not easy to follow. It helps to
start with a few basics. Farok H. (“F.H.”) and
Orwa A. (“O.A.”) are husband and wife. Pet. [ECF
No. 1] ¶ 79. They have been married since 1986 and have
six children, including one born in Minnesota. Id.;
Mem. in Opp'n [ECF No. 16] at 4. F.H. and O.A. reside in
Blaine, Minnesota, Pet. ¶¶ 54, 81, thus making the
District of Minnesota the appropriate judicial district in
which to bring this action, 8 U.S.C. § 1421(c). F.H. is
an accomplished and respected Sheikh. Pet. ¶ 54. F.H.
and O.A. are natives and citizens of Iraq, id.
¶¶ 53, 79, and they wish to become United States
citizens. According to the petition, “[O.A.]'s
immigration status in the U.S. has been entirely linked to
and dependent on [F.H.]'s immigration status, ”
id. ¶ 80. Because O.A.'s status derives
entirely from F.H.'s, the Court's description of the
background facts and administrative and judicial proceedings
often focuses on F.H.
as it matters to this lawsuit, F.H.'s immigration path
began in August 1998. That month, Al-Amal School in Fridley,
Minnesota, filed an I-129 petition with the Immigration and
Naturalization Service (“INS, ” the predecessor
of USCIS) on F.H.'s behalf. Al-Saadoon v.
Holder, No. 12-cv-2949 (PAM/TNL), 2014 WL 5362890, at *1
(D. Minn. Oct. 21, 2014) (“Al-Saadoon
I”), aff'd sub nom. Al-Saadoon v.
Lynch, 816 F.3d 1012 (8th Cir. 2016). Al-Amal School
sought to have F.H. provide it with religious-worker services
on a temporary basis. Id. INS granted the petition
and approved a nonimmigrant visa for F.H. that was valid from
September 14, 1998, to September 5, 2001. Id. F.H.
entered the United States as a nonimmigrant religious worker
in June 1999. Id.; Pet. ¶¶ 53, 80.
classification changed in December 2000. That month, in
response to a petition filed by the Islamic Cultural
Community Center (“ICCC”) in Minneapolis, the INS
approved an immigrant visa for F.H. Al-Saadoon I,
2014 WL 5362890 at *1-2. The ICCC wanted F.H. to serve as its
Imam on a permanent basis. Id. at *1. This change in
classification was significant. It meant F.H. and,
derivatively, O.A. wished to live permanently in the United
States. In June 2001, F.H. took another step
towards permanency by applying to adjust his status to that
of a lawful permanent resident, a prerequisite to pursuing
naturalization. Id. at *2, *4. The INS approved that
application on August 21, 2002. Id. at *2; Pet.
¶¶ 55, 82. (The INS had reason to deny the
application, but more on that in the next section.)
next step in his immigration process would become the subject
of Petitioners' first federal-court case. In July 2007,
F.H. applied for naturalization by submitting a form N-400.
Al-Saadoon I, 2014 WL 5362890 at *2; Pet.
¶¶ 56, 83. After a review and administrative appeal
process, USCIS denied F.H.'s naturalization application
in a decision dated August 16, 2012. Al-Saadoon I,
2014 WL 5362890 at *3; Pet. ¶¶ 64, 91. USCIS gave
two reasons for its final decision. First, it determined that
although the INS had approved his application for lawful
permanent residency, F.H. had not been lawfully
admitted to permanent residency-a prerequisite to
naturalization-because he, unbeknownst to the INS at the time
of the status adjustment, had engaged in unauthorized
employment while in the United States on his nonimmigrant
visa. See Al-Saadoon I, 2014 WL 5362890 at *2-3, *5.
USCIS determined that F.H. had worked for the ICCC when his
nonimmigrant visa permitted F.H. to work only for Al-Amal
School. See Id. at *2-3. Therefore,
notwithstanding INS's prior approval, USCIS concluded
that F.H.'s admission to permanent residency was not, in
fact, “lawful” due to his unauthorized
employment. Id. at *3, *6. Second, and not at issue
in this case, USCIS determined that F.H. “lacked good
moral character.” Pet. ¶¶ 64, 91;
Al-Saadoon I, 2014 WL 5362890 at *3.
November 26, 2012, Petitioners filed suit in the United
States District Court for the District of Minnesota
(Al-Saadoon I). Pet. ¶¶ 65, 92. In that
case, just as in this case, Petitioners sought de novo review
of USCIS's decisions denying their naturalization
applications under 8 U.S.C. § 1421(c). Id.
Following a bench trial, District Judge Paul A. Magnuson
issued detailed findings of fact and conclusions of law
affirming USCIS's denials. Among other things, Judge
In sum, if a nonimmigrant religious worker provides paid or
volunteer services for a different religious organization
than that authorized to engage his or her services and the
different religious organization does not file a new petition
and obtain authorization, those services constitute
unauthorized employment and bar the applicant from being
admitted to permanent residence status. If the applicant was
admitted, the admission was unlawful and renders the
applicant ineligible for naturalization.
Al-Saadoon I, 2014 WL 5362890 at *6. Judge Magnuson
found that the record before him “plainly
reflect[ed]” that F.H. had engaged in employment for
the ICCC while in the United States on a nonimmigrant visa
that authorized employment only with Al-Amal School.
Id. As a result, Judge Magnuson ordered that
“[n]either [F.H.] nor [O.A.] are eligible to naturalize
because they were not lawfully admitted to permanent
residence status.” Id. at *7. Because Judge
Magnuson affirmed USCIS's denial of Petitioners'
naturalization applications on this basis, he did not address
USCIS's second ground for denying the applications-that
F.H. lacked good moral character. Id.
appealed Judge Magnuson's judgment to the Eighth Circuit.
It affirmed, finding that “the record clearly
supports” the primary basis for Judge Magnuson's
decision. Al-Saadoon v. Lynch, 816 F.3d 1012, 1015
n.2 (8th Cir. 2016). The Eighth Circuit explained:
[F.H.] does not dispute that the ICCC was not authorized to
employ him until at least August 2, 2000, when the ICCC filed
an I-360 Petition for Special Immigrant Religious Worker on
[F.H.]'s behalf. He simply asserts that he was not
employed before that time.
The district court found that he began his employment with
the ICCC before he was authorized to do so, “starting
at least in early to mid-2000.” Three of [F.H.]'s
own statements are central to the court's finding. First,
[F.H.] stated on his 2007 naturalization application that he
was employed by the ICCC from “7-15-2000” to the
“present.” He signed and certified that
application under penalty of perjury. Second, in a sworn
interview, [F.H.] said that he began working at the Al-Amal
School in 1999 and was employed by them for “less than
a year” before he started working for the ICCC; a
letter from the school confirmed that he started working at
the school in June 1999, more than one year before the ICCC
filed the petition. Third, in his sworn, pretrial deposition,
he testified that he was working at the ICCC as an Imam in
April 2000. [F.H.] points to nothing in the record, other
than his bald assertion that he was previously mistaken, to
undermine the district court's reliance on his certified
naturalization application, his sworn statements, and the
Id. at 1015. Following the Eighth Circuit's
decision, Petitioners sought rehearing en banc and
by the panel. The Eighth Circuit denied both requests in an
order dated May 31, 2016, and that is where Petitioners'
first case ended. Al-Saadoon v. Lynch, No. 14-3807,
2016 U.S. App. LEXIS 9895, at *1 (8th Cir. May 31, 2016).
second and third suits-and this suit-have their origins in a
set of petitions and applications filed with USCIS in
November 2014 and March 2015 (after Judge Magnuson entered
judgment against Petitioners in Al-Saadoon I, and
during the pendency of their Eighth Circuit appeal). Pet.
¶¶ 69-70, 96-97. Petitioners sought via those USCIS
filings a retroactive cure for the unlawfulness of their 2002
admission to permanent residency found in Al-Saadoon
I and, if that retroactive cure were approved, then a
new path to naturalization. Describing what Petitioners did,
and why they did it, takes some explaining. Petitioners
proceeded in essentially two steps.
Change the basis of Petitioners' lawful permanent
residency. Recall that one of Petitioners' children was
born in, and is a citizen of, the United States. In November
2014, that child filed a form I-130 for each Petitioner. Pet.
¶¶ 69, 96. A form I-130 establishes the existence
of a qualifying family relationship between a citizen and an
individual seeking lawful permanent residency. See
U.S. Citizenship & Immigration Servs., Instructions
for Form I-130, Petition for Alien Relative, OMB No.
1615-0012 (2017). Petitioners concurrently filed forms I-485
seeking lawful permanent residency on the basis of their
child's citizenship. Pet. ¶¶ 69, 96.
To clarify, these documents sought to establish a different
basis for lawful permanent residency than Petitioners sought
originally in 2001. Back then, Petitioners sought lawful
permanent residency on the basis of F.H.'s immigrant visa
issued in connection with F.H.'s ICCC employment.
Al-Saadoon I, 2014 WL 5362890, at
*1-2. One might reasonably infer from these
filings that Petitioners were reapplying for lawful permanent
residency so that, if ...