United States District Court, S.D. Indiana, Indianapolis Division
ABDULWAHAB HASSAN ABASHAAR, SAFA'A MANSOOR AL DAHMI, and OSAMAH ABDULWAHAB ABASHAAR, Plaintiffs,
R STEPHEN BEECROFT, Ambassador, United States Embassy - Cairo; UNITED STATES DEPARTMENT OF STATE; FEDERAL BUREAU OF INVESTIGATION; CHRISTOPHER WRAY,  Director of the Federal Bureau of Investigation; L. FRANCIS CISSNA,  Director of United States Citizenship; and UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendants.
OPINION and ORDER
L. Miller, Jr., Judge.
Abdulwahab Hassan Abashaar; Safa'a Mansoor Al Dahmi, Mr.
Abashaar's wife; and Osamah Abdulwahab Abashaar, Mr.
Abashaar's son, seek a writ of mandamus pursuant to 28
U.S.C. §§ 1361, 1651; relief under the
Administrative Procedure Act; and a declaratory judgment
pursuant to 28 U.S.C. § 2201 related to Mr.
Abashaar's I-130 immigration petitions. The plaintiffs
also seek attorney fees under the Equal Access to Justice
Act, 28 U.S.C. § 2412. The defendants moved to dismiss
under Rule 12(b)(1) for lack of subject matter jurisdiction
and Rule 12(b)(6) for failure to state a claim. For the
following reasons, the court grants the defendants'
motion to dismiss.
Standard of Review
12(b)(1) motion to dismiss “tests the jurisdictional
sufficiency of the complaint.” Bultasa Buddhist
Temple of Chicago v. Nielsen, 878 F.3d 570, 573 (7th
Cir. 2017) (citing Ezekiel v. Michel, 66 F.3d 894,
897 (7th Cir. 1995)). “Subject-matter jurisdiction is
the first question in every case, and if the court concludes
that it lacks jurisdiction it must proceed no further.”
Illinois v. City of Chi., 137 F.3d 474, 478 (7th
Cir. 1998). When considering a Rule 12(b)(1) motion, the
court “accept[s] as true all well-pleaded factual
allegations and draw[s] reasonable inferences in favor of the
plaintiffs.” Bultasa Buddhist Temple of Chicago v.
Nielsen, 878 F.3d at 573 (citing Ezekiel v.
Michel, 66 F.3d 894, 897 (7th Cir. 1995)). If evidence
outside of the complaint suggests that the court lacks
jurisdiction, the court can properly look beyond the
complaint and consider that evidence. Taylor v.
McCament, 875 F.3d 849, 853 (7th Cir. 2017) (citing
Apex Digital, Inc. v. Sears, Roebuck & Co., 572
F.3d 440, 444 (7th Cir. 2009)). “Under Article III of
the Constitution, the judicial power of the United States
extends only to cases and controversies, ” Home
Care Providers, Inc. v. Hemmelgarn, 861 F.3d 615, 620
(7th Cir. 2017) (quoting Wis. Right to Life, Inc. v.
Schober, 366 F.3d 485, 488 (7th Cir. 2004)), and
“an actual controversy must be extant at all stages of
review, not merely at the time the complaint is filed.”
Qureshi v. Gonzales, 442 F.3d 985, 988 (7th Cir.
2006) (quoting Arizonans for Official English v.
Arizona, 520 U.S. 43, 67 (1997)). “[C]ases that do
not involve actual, ongoing controversies are moot and must
be dismissed for lack of jurisdiction.” Home Care
Providers, Inc. v. Hemmelgarn, 861 F.3d at 620 (quoting
Wis. Right to Life, Inc. v. Schober, 366 F.3d at
considering a Rule 12(b)(6) motion to dismiss, the court
construes the complaint in the light most favorable to the
nonmoving party, accepts all well-pleaded facts as true, and
draws all inferences in the nonmoving party's favor.
Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1146
(7th Cir. 2010). But Fed.R.Civ.P. 8(a)(2) “demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007)).
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.' ”
Ashcroft v. Iqbal, 556 U.S. at 678 (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. at 570). A claim is
plausible if “the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. at 556).
Twombly and Iqbal “require the
plaintiff to ‘provid[e] some specific facts' to
support the legal claims asserted in the compliant.”
McCauley v. City of Chicago, 671 F.3d 611, 616 (7th
Cir. 2011) (quoting Brooks, 578 F.3d at 581)). The
plaintiff “must give enough details about the
subject-matter of the case to present a story that holds
together.” Swanson v. Citibank, N.A., 614 F.3d
400, 404 (7th Cir. 2010).
amended complaint alleges that the plaintiffs fled to Egypt
from Yemen, where a civil war threatened their lives. The
plaintiffs say that while in Egypt, Mr. Abashaar, a United
States citizen, filed I-130 petitions on behalf of his wife,
Ms. Al Dahmi, and his son, Osamah, at the U.S. Embassy in
Cairo. The plaintiffs claim that during their consular
interview at the Embassy regarding the I-130 petitions, a
Federal Bureau of Investigation agent was present and the
consular officer asked the agent if the petition should be
approved. The agent allegedly told the consular officer that
it was up to the State Department to make that decision. The
plaintiffs say that they received no notices of any
additional interviews for the I-130 petitions. The amended
complaint alleges that the defendants didn't properly
adjudicate the petitions and acted in bad faith by not
rescheduling the second interview, including an FBI agent in
the Cairo Embassy interview, and failing to render a decision
on the petitions.
defendants move to dismiss, first arguing that the amended
complaint's mandamus and APA claims were mooted when the
United States Citizenship and Immigration Services
adjudicated and denied the I-130 petitions. The defendants
submitted evidence that the United States Citizenship and
Immigration Services denied Mr. Abashaar's petitions as
abandoned because he didn't appear at scheduled
interviews. [See Doc. No. 48-1 at 2-5].
plaintiffs don't deny that the petitions were
adjudicated, but argue that United States Citizenship and
Immigration Services was obligated to fully and fairly
adjudicate the petitions, not just render a decision, and so
these claims aren't moot. The plaintiffs contend that the
defendants didn't provide Mr. Abashaar with statutorily
mandated notices of required interviews, but the
defendants' attached interview notices and accompanying
envelopes, sent to the addresses Mr. Abashaar provided on the
I-130 petitions to their reply brief. [Doc. No. 50-1 at
to the court of appeals, a mandamus action seeking the
adjudication of an I-130 petition is rendered moot by the
adjudication of the petition. Qureshi v. Gonzales,
442 F.3d at 988. See also Martinez v. Mayorkas, No.
1:13CV485, 2014 WL 4908447, at *3 (S.D. Ohio Sept. 30, 2014)
(collecting cases and holding that “[f]ederal district
courts have often dismissed as moot mandamus actions
requesting adjudication of an I-130 petition . . . once the
petition . . . has been adjudicated”). Accordingly, to
the extent Mr. Abashaar's amended complaint seeks a writ
of mandamus to compel adjudication of his petitions, it is
moot. And to the extent the amended complaint seeks to compel
adjudication of the petitions pursuant to the APA or that
adjudication was unreasonably delayed, those claims are also
moot. See Mufti v. Lynch, 190 F.Supp.3d 827, 833
(N.D. Ind. 2016) (an APA claim seeking to compel adjudication
of an I-130 petition is rendered moot by the adjudication of
the petition); Martinez v. Mayorkas, No. 1:13CV485,
2014 WL 4908447, at *3 (S.D. Ohio Sept. 30, 2014) (same).
plaintiffs contend that their APA claim survives because the
defendants should have rescheduled Mr. Abashaar's
interviews for the I-130 petitions, but the plaintiffs cite
no authority suggesting that the agency has a duty to
reschedule an interview when a petitioner fails to appear.
Absent a clear duty to act, the court can't compel agency
action. Iddir v. I.N.S., 301 F.3d 492, 501 (7th Cir.
plaintiffs also oppose dismissal, arguing that the defendants
violated the APA by “act[ing] in bad faith when they
improperly and unlawfully included the FBI in the
decision-making process” on Mr. Abashaar's I-130
petitions. [Doc. No. 37 at ¶ 45]. Neither the amended
complaint nor the plaintiffs' brief in opposition to the
motion to dismiss point to any statute, regulation, or agency
guidance that prohibits the FBI's alleged conduct-being
present during a consular interview and declining to offer an
opinion on Mr. Abashaar's petitions. The amended
complaint's “bare and conclusory allegations”
that it was improper and unlawful for the FBI to be present
for a consular interview or part of the decision-making
process are insufficient “to raise a right to relief
above the speculative level.” Diedrich v. Ocwen
Loan Servicing, LLC, 839 F.3d 583, 589 (7th Cir. 2016).
Rule 8 “demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Accordingly, the APA claim must be dismissed.
it is dismissing the mandamus and APA claims, the court, in
its discretion, declines to entertain the claim for
declaratory relief. See Wilton v. Seven Falls Co.,
515 U.S. 277, 282 (1995) (holding that “district courts
possess discretion in determining whether ...