Ali Alkady v. Corinna Luna ( 2020 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 4, 2019
Decided March 10, 2020
Before
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE , Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 19-1838
ALI ALKADY, et al., Appeal from the United States District
Plaintiffs-Appellants, Court for the Northern District of
Indiana, Fort Wayne Division.
v.
No. 1:18-CV-1-TLS
CORINNA LUNA, et al.,
Defendants-Appellees. Theresa L. Springmann,
Chief Judge.
ORDER
Ali Alkady filed I-130 Petitions for Alien Relatives for three of his alleged
children in 2000. Nearly two decades later, having received no decisions, Alkady and
the three sued for mandamus and other relief. Defendants1 moved to dismiss because
the government already denied the petitions in 2003. The district court dismissed the
1Alkady named as Defendants: Corinna Luna, Los Angeles Field Office Director for USCIS; Lee Cisna,
Director of USCIS; and Elaine Dukes, Acting Director of DHS.
No. 19-1838 Page 2
case for mootness and the resulting lack of standing and lack of subject matter
jurisdiction. We affirm.
I.
Via I-130, a United States citizen may petition the government to allow a family
member to apply for lawful permanent resident status. The petitioner must establish his
claimed relationship to the alien beneficiary. Ali Alkady is a naturalized United States
citizen from Yemen. In 2000 he filed three I-130 petitions with the United States
Immigration and Naturalization Service—one for each of three of his alleged children:
Sami, Adel, and Yasser2 Alkadi. But then he waited. For years the government’s website
showed the petitions as pending and active.3
The Homeland Security Act of 2002 abolished the Immigration and
Naturalization Service, effective March 1, 2003. 6 U.S.C. § 291(a). This Act also
established the Bureau of Citizenship and Immigration Services (USCIS), which
assumed responsibility for immigration adjudication.
In 2013, Alkady filed another petition on behalf of Sami. This petition listed an
address in New York for Alkady. This petition said the 2000 petition for Sami was
withdrawn because “they decided to stay in Saudi Arabia.” In 2017, the government
sent Alkady (at an address in Fort Wayne, Indiana) a Request for Evidence (RFE)
regarding the 2013 petition. Alkady apparently responded from that address. USCIS
allegedly directed Alkady to attend an interview on the 2013 petition, and denied that
petition when he did not appear.4
II.
Finally, in 2018, Alkady and his three alleged children sued. They claimed the
government failed to render a full and proper adjudication of the three 2000 petitions.
2 The captions of the original and amended complaints spell this name “Yeasser.” But the bodies of these
pleadings say “Yasser.” Appellants’ brief has the same discrepancy between its caption and body. The
relevant I-130 and birth certificate say “Yasser.”
3 Appellees admitted in their appellate brief filed in September 2019 that the government’s website still
indicated the cases remain pending. Appellees also noted the website’s entries for the three 2000 petitions
showed Requests for Evidence were sent on December 2, 2002. At oral argument, counsel for Appellees
said the government finally updated the website’s indication of the petitions’ status. She also argued the
website’s notification of the 2002 RFEs undermines Appellants’ claimed reliance on the website’s
indication the petitions remained pending. But we need not rely on this argument.
4The 2013 petition is not at issue in this case. Why Alkady did not bring this case earlier remains a
mystery. But we need not solve this mystery to resolve this case.
No. 19-1838 Page 3
They claimed the government made no decisions on these petitions. (They did not bring
claims related to the 2013 petition.)
Defendants moved to dismiss for lack of subject matter jurisdiction due to
mootness because the government already adjudicated the petitions. Defendants
alleged the government issued RFEs on December 2, 2002, regarding Alkady’s
relationship to the beneficiaries, their birth dates, and their identities. Defendants
alleged the government denied the petitions on June 26, 2003, on their merits as filed,
after it received no response to the RFEs. Defendants attached copies of three denial
letters allegedly sent to Alkady at the Dearborn, Michigan address he provided in the
petitions.
Plaintiffs responded by amending their pleading. They dropped the original
pleading’s specific allegation that no decisions were made on their three 2000 petitions.
Instead, Plaintiffs alleged they had not received any RFEs or decisions on these
petitions. But the amended pleading maintained the original allegation that Defendants
“failed to issue” decisions on the petitions.5 The amended pleading also maintained the
original allegations that the government had not completed a full and proper
adjudication of the petitions and Defendants had withheld clear, nondiscretionary
duties to adjudicate the petitions and notify Plaintiffs of any decision. Plaintiffs added
allegations that the government subjected petitions filed by people from Yemen to a
different, unlawful adjudication scheme.
The amended complaint purported to state eight claims. Count I asked the
district court to compel Defendants to render a “proper and complete decision” on the
three 2000 petitions. Count II asked the court to compel proper agency action and to set
aside unlawful agency action. Count III alleged Defendants’ “unlawful Yemeni I-130
adjudicative scheme” caused Plaintiffs “to suffer irreparable harm and damage entitling
them to declaratory, injunctive and other relief.” Count IV purported to state a
“substantive” due process claim for depriving Plaintiffs of their “liberty interest in
making personal choices regarding family matters … .” Count V purported to state a
“procedural” due process claim for the “unreasonable delay” in adjudicating the 2000
petitions. Count VI alleged Defendants discriminated against Muslim petitions,
including Plaintiffs’ 2000 petitions. Count VII alleged a conspiracy to interfere with civil
rights, and claimed this conspiracy “resulted in the death of his United States citizen
5 Perhaps Alkady and his alleged children draw a distinction between deciding and issuing a decision. In
any event, as we will see, they subsequently clarified they admit the government made decisions about
the three 2000 petitions, and contend these decisions were unlawful.
No. 19-1838 Page 4
child.” Count VIII sought a declaration Defendants violated the Immigration
Nationality Act and other federal laws.
Defendants again moved to dismiss all claims for mootness, lack of standing, and
lack of subject matter jurisdiction. Defendants alleged discrepancies and evidentiary
inadequacies plagued all three 2000 petitions. So in 2002, the government mailed three
RFEs to Alkady at his last-known address: the Dearborn, Michigan address he listed on
the three 2000 petitions. Alkady failed to respond, so the government denied these
petitions in 2003. Defendants argued the case was moot because Alkady was asking the
court to order the government to process petitions it had already processed to
disposition. Defendants also raised arguments supporting dismissal for failure to state a
claim. Alkady responded by again denying he ever received the 2002 RFEs or the 2003
denial notices.
The district court dismissed all claims for lack of subject matter jurisdiction given
mootness and the resulting lack of standing. We review dismissal for lack of subject
matter jurisdiction de novo. Evers v. Astrue, 536 F.3d 651, 656 (7th Cir. 2008). Like the
district court, we must accept as true all well-pleaded factual allegations and draw all
reasonable inferences in Plaintiffs’ favor, but we may look beyond the complaint. Id. at
656–57. We may affirm dismissal on any ground supported by the record. Haywood v.
Massage Envy Franchising, 887 F.3d 329, 332–33 (7th Cir. 2018); Sykes v. Cook Cty. Circuit
Court, 837 F.3d 736, 740 (7th Cir. 2016). Indeed, even if neither party nor the district
court mentioned any problem with subject matter jurisdiction, we would still evaluate it
sua sponte on appeal. Buchel-Ruegsegger v. Buchel, 576 F.3d 451, 453 (7th Cir. 2009).
III.
Federal courts have only limited jurisdiction. U.S. Const. art. III, § 2, cl. 1. Federal
judicial power extends only to certain cases and controversies. Portalatin v. Blatt,
Hasenmiller, Leibsker & Moore, LLC, 900 F.3d 377, 383 (2018). Cases that do not involve
actual, ongoing controversies are moot and must be dismissed for lack of jurisdiction.
Home Care Providers v. Hemmelgarn, 861 F.3d 615, 620 (7th Cir. 2017).
Here, Alkady concedes the government disposed of his three 2000 petitions (but
argues the disposal was unlawful).6 He denies ever receiving the 2002 RFEs or the 2003
denial notices (until this litigation). But he never denied the government mailed them to
6 See, e.g., Appellants’ Br. at 2, 9; Oral Argument at 11:34,
http://media.ca7.uscourts.gov/sound/2019/pnr.19-1838.19-1838_12_04_2019.mp3; Alkady v. Luna, No. 1:18-
CV-1-TLS, 2019 WL 984233, at *3 (N.D. Ind. Feb. 28, 2019) (“Nor do they deny that the USCIS denied their
2000 Petitions in 2003.”).
No. 19-1838 Page 5
his last-known address. Nor did he ever deny this was the proper address. Significantly,
he never claimed he moved and notified the government of an address change. He
never claimed the government mailed the documents to the wrong address or had a
duty to investigate and track him. He never claimed the government received any sort
of return-to-sender notice or had any other reason to know he did not receive the RFEs.
He never pointed to any requirement for the government to provide further notice in
this situation.
Instead, he merely denied receiving the RFEs, and asserted the Defendants’ claim
that the government sent them to him is “utterly false.” But the government had no
absolute duty to send the documents to him if it sent them to his last-known address
and had no reason to know he did not receive them.
Alkady has not offered any reason to think mailing the RFEs to his last-known
address was insufficient here.7 Due process requires notice and an opportunity to be
heard. Knutson v. Vill. of Lakemoor, 932 F.3d 572, 576 (7th Cir. 2019). Notice must be
reasonably calculated to reach the intended recipient. See Mullane v. Cent. Hanover Bank
Trust Co., 339 U.S. 306, 315 (1950) (“The means employed must be such as one desirous
of actually informing the absentee might reasonably adopt to accomplish it.”); see also
Commodity Futures Trading Comm’n v. Lake Shore Asset Mgmt., 646 F.3d 401, 406 (7th Cir.
2011) (“The duty is to employ a method of notice that is reasonably calculated to reach
the intended recipient, and sometimes entirely proper notice fails to do so.”). The
Supreme Court recognizes that “reasonable risks that notice might not actually reach
every beneficiary are justifiable.” Mullane, 339 U.S. at 319.
Here, it is uncontested the government sent the RFEs to Alkady’s address of
record, his last-known address. Alkady does not claim the government had any reason
to doubt he received them. Mail is generally sufficient for notice absent a reason to think
the target did not receive the mail or a rule requiring different methods. The Supreme
Court recognizes mail provides an “‘efficient and inexpensive means of communication’
… upon which prudent men will ordinarily rely in the conduct of important affairs … .”
Greene v. Lindsey, 456 U.S. 444, 455 (1982) (quoting Mullane, 339 U.S. at 319).
Alkady points to Caplash v. Johnson, 230 F. Supp. 3d 128 (W.D.N.Y. 2017), for the
proposition that failing to provide proper notice of an RFE and then denying a petition
for failure to respond to the RFE violates due process. That proposition is unassailable.
But the question is: what is proper notice? Caplash grounded its conclusion that the
7See 8 C.F.R. § 103.5a(a)(1) (2002) (“Routine service consists of mailing a copy by ordinary mail
addressed to a person at his last known address.”).
No. 19-1838 Page 6
government did not provide proper notice on facts distinguishable from ours. There,
the court concluded the government was required to pursue additional steps to notify
the plaintiff of the RFE before denying his petition because the government was
“specifically aware that [Caplash] would not receive the notice to supply the additional
requested evidence or the denial of his petition such that he could move to reopen his
case in a timely manner.” Caplash, 230 F. Supp. 3d at 141.
Caplash filed an I-130 petition on behalf of his brother. Caplash then moved but
did not give a new address to USCIS. USCIS mailed a notice to Caplash’s last-known
address, but it was returned to USCIS as undeliverable, with a handwritten note:
“Moved out at least 10 months ago (if he/she ever lived here).”
Apparently undaunted, USCIS then mailed an RFE to the same address, which
was returned with another handwritten note: “moved years ago.”
About two months later, USCIS, still unphased, sent to the same address a notice
denying the I-130 petition for failure to respond to the RFE. This denial notice was
returned with yet another handwritten note: “MOVED LONG AGO … AWAY.”
The record showed USCIS made no attempt to find Caplash before denying his
petition. USCIS denied the petition due to his failure to respond to an RFE that USCIS
knew he never received. Caplash, 230 F. Supp. 3d at 135. So USCIS failed to employ a
method of notice reasonably calculated to reach the intended recipient. The court held
USCIS was “required to pursue additional reasonable steps to notify [Caplash] of the
RFE before terminating his pending petition because [it was] specifically aware that
[Caplash] would not receive” the RFE. Id. at 141.
But here, Appellants do not even claim the government had any reason to doubt
Alkady received the RFEs. Having no reason to doubt, the government had no duty to
take further steps to ensure notice.
IV.
Appellants do not deny that the information provided regarding the beneficiaries
was inconsistent or incomplete, that sending RFEs when presented with inconsistent
information is lawful, that the government mailed the RFEs to Alkady’s last-known
address, that the government had no reason to doubt Alkady received them, that under
these circumstances the government had no duty to investigate Alkady’s whereabouts
or provide further notice, that Alkady never responded, that the government denied the
petitions, that inconsistent or incomplete information (or failure to respond to RFEs) are
legitimate grounds for denial, or that the actual time frames alleged by Appellees were
lawful.
No. 19-1838 Page 7
Thus, Appellants’ claims premised on lack of an adjudication are moot and
Appellants’ other allegations fall for failure to state a claim. Appellants never claimed
anything capable of enabling any of their non-moot allegations to survive. The
government’s website was wrong for many years. But that has no bearing on the
uncontested facts.8 We AFFIRM.
8 Appellants also argued the denials of the three 2000 petitions were unlawful because Immigration and
Naturalization Service apparently issued the denials after it ceased existing and USCIS took over. But
Appellants made this argument for the first time at oral argument, so we decline to address it. Several
possibilities might explain this apparent discrepancy, but we decline to speculate.