United States District Court, District of Columbia
MUSTAFA RAOOF, et al. Plaintiffs,
JOHN J. SULLIVAN, ACTING SECRETARY OF STATE,  et al. Defendants.
N. McFADDEN UNITED STATES DISTRICT JUDGE.
the J-1 visa program, foreign doctors, accompanied by their
spouse and minor children, can “temporarily”
visit the United States for “graduate medical education
or training.” 8 U.S.C. § 1101(a)(15)(J). Exchange
visitors in this category cannot apply for permanent
residence unless they return to their last foreign residence
for two years-barring a waiver of the requirement from the
Attorney General, with the approval of the State Department
and the Department of Homeland Security (DHS) (collectively,
the Government). 18 U.S.C. § 1182(e). In this case, Dr.
Mustafa Raoof, his wife Sidra Haye, and their American son
challenge the denial of Dr. Raoof's waiver request, which
requires them to return to Pakistan. The Government moves to
dismiss, contending in large part that the decision is
entrusted solely to agency discretion, and not reviewable by
the judicial branch. For the reasons that follow, I will
grant the motion to dismiss.
Raoof and his wife, Ms. Haye, are citizens of Pakistan, and
current residents of California. Compl. ¶¶ 1-2. Dr.
Raoof entered the country in 2009 on a form of the J-1 visa,
“as a nonimmigrant exchange visitor under 8 U.S.C.
§ 1101(a)(15)(J) to undertake a residency program in
general surgery.” Id. at ¶ 24. His visa
was sponsored by the Educational Commission for Foreign
Medical Graduates (ECFMG). Id. at ¶ 25. After
Dr. Raoof wed Ms. Haye in April 2010, she entered the country
in July 2010 on a J-2 visa, id. at ¶¶ 24,
27, “as a derivative” of Dr. Raoof's status.
Id. at ¶ 21. Their son, “M.R., ”
was born in the United States in September 2015, making him
an American citizen by birth. Id. at ¶ 28.
Because Dr. Raoof came to the United States for graduate
medical education, he is subject to the “two-year
foreign residency requirement” under 18 U.S.C. §
1182(e), and cannot apply for permanent resident status,
better known as a Green Card, “until he has either
fulfilled the requirement by spending two years in his home
country, or until he has obtained a waiver of the
requirement.” Id. at ¶ 18.
Raoof applied for a waiver of the two-year foreign residency
requirement in 2016, arguing that his U.S. citizen son would
be subjected to “exceptional hardship” if forced
to return to Pakistan. Id. at ¶¶ 22,
36-41. According to the complaint, “Pakistan is one of
the most violent, dangerous, and unstable countries in the
world, ” with ongoing sectarian and political violence.
Id. at ¶ 14. Both Dr. Raoof and his wife are
from “the large southern port city of Karachi, ”
which they allege “is in a state of near-anarchy, with
constant gang wars and sectarian violence, ” creating
an “exceptional risk” that their son would be
“singled out for mistreatment and/or kidnapping for
ransom” because of his American citizenship.
Id. at ¶ 15. A forced return to Pakistan would
also allegedly cause M.R. exceptional medical, psychological,
educational, and sociocultural hardships. Id. at
December 1, 2016, United States Citizenship and Immigration
Services (USCIS), a component of DHS, allegedly made the
initial determination-via Defendant Kathy Baran, Director of
the USCIS California Service Center-“that Dr.
Raoof's qualifying relative would suffer exceptional
hardships if a waiver was not granted.” Id. at
¶ 44; see also Def.'s Mot. Dismiss 3 (Mot.
Dismiss) (declining to deny the allegation). This finding was
memorialized on a “Form I-613, ” which indicated
that “prior to Ms. Baran's review . . . an
Adjudications Officer and a Supervisory Officer all made the
same finding.” Id. at ¶ 44. Dr.
Raoof's waiver application was then sent to the State
Department's Waiver Review Division (WRD). Id.
at ¶ 50.
USCIS had already determined that non-waiver would impose an
exceptional hardship, WRD was required to “review the
program, policy, and foreign relations aspects of the case,
make a recommendation, and forward it to the appropriate
office at DHS (in this case, the USCIS California Service
Center).” 22 C.F.R. § 41.63. That same regulation
states that “If it deems it appropriate, the Waiver
Review Division may request the views of each of the exchange
visitors' sponsors concerning the waiver
application.” Id. After receiving the
application, WRD obtained “a Letter of Need, ” a
document required by regulation for “admission to the
United States in J-1 status for graduate medical education,
” likely written by ECFMG, Dr. Raoof's original
sponsor. Compl. ¶ 52. The Plaintiffs allege “[o]n
information and belief” that the WRD “did not
seek or review Letters of Need” in cases like Dr.
Raoof's prior to 2010. Id. at ¶ 54. WRD
then “issued a Not Favorable recommendation”
using the bottom of Form I-613, and sent the recommendation
back to Director Baran at the USCIS California Service
Center. Id. at ¶ 56.
the form “contains a box that allows the State
Department to explain” the reasons for its
recommendation, WRD did not use this box. Id. at
¶¶ 55, 57.
Baran then denied the waiver application on the basis of the
State Department's recommendation, explaining that:
In reaching this conclusion, the Waiver Review Division
considered a range of facts relevant to assessing program,
policy, and foreign relations interests in your case and
determined that you would provide valuable knowledge, skills
and expertise as a physician in the field of general surgical
oncology. If you fail to fulfill your two-year foreign
residency requirement, Pakistan would lose the opportunity to
gain from your valuable experience in the United States.
Id. at ¶¶ 73-74. There is no
administrative appeal from this decision. Id. at
¶ 75. Because Ms. Haye's J-2 status is derivative of
Dr. Raoof's, agency regulations state that she is subject
to the same two-year foreign residency requirement. 22 C.F.R.
§ 41.62(c)(4); 8 C.F.R. § 212.7(c)(4); Compl.
¶¶ 82, 85-85. The Plaintiffs argue that this
requirement is “contrary to the plain language of 8
U.S.C. § 1182(e), ” which they claim only applies
to the original J-1 visa recipient. Compl. ¶¶
suit contains nine counts challenging the waiver denial on
statutory interpretation grounds, and under the
Administrative Procedure Act (APA), the Constitution's
Due Process Clause, the International Covenant on Civil and
Political Rights, the Mandamus Act, and the Declaratory
Judgment Act. Compl. 21-30. The Government has moved to
dismiss, citing lack of jurisdiction as to the APA abuse of
discretion count, and failure to state a claim as to the
remainder. Mot. Dismiss 1-2.
Federal Rule of Civil Procedure 12(b)(1), a complaint may be
dismissed for lack of subject matter jurisdiction, if the
plaintiff fails to establish it. Arpaio v. Obama,
797 F.3d 11, 19 (D.C. Cir. 2015). “While the district
court may consider materials outside the pleadings in
deciding whether to grant a motion to dismiss for lack of
jurisdiction . . . the court must still accept all of the
factual allegations in [the] complaint as true.”
Jerome Stevens Pharm., Inc. v. Food & Drug
Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005) (internal
quotation marks and citations omitted).
complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). However,
“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. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). “A claim crosses
from conceivable to plausible when it contains factual
allegations that, if proved, would ‘allow the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.'” Banneker
Ventures, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir.
2015) (alteration omitted) (quoting Iqbal, 556 U.S.
at 678). In this inquiry, a court must “draw all
reasonable inferences from those allegations in the
plaintiff's favor, ” but does not “assume the
truth of legal conclusions.” Id.
Plaintiffs' “chief claim” is that “is
that the State Department must have abused its
discretion” in denying Dr. Raoof's waiver
application. Compl. ¶ 16. Although they press this
contention in many legal forms, and assail related aspects of
the waiver determination system, each claim ultimately fails.
The challenged decision, while important and complicated, is
fundamentally discretionary. The power to make it has been
allotted by statute to ...