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Orwa A. v. Whitaker

United States District Court, D. Minnesota

December 10, 2018

Orwa A. and Farok H., Petitioners,
Matthew G. Whitaker, [1] 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.

          Joseph 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.


          Eric C. Tostrud Judge

         Petitioners 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.[2] 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.

         Here, 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.



         The 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.

         Insofar 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.

         F.H.'s 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.[3] 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.)


         F.H.'s 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.

         On 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 Magnuson concluded:

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.

         Petitioners 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 corroborating letters.

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).


         Petitioners' 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.

         Step 1: 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.[4] One might reasonably infer from these filings that Petitioners were reapplying for lawful permanent residency so that, if ...

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