Raoof v. Tillerson

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MUSTAFA RAOOF, et al. Plaintiffs, v. Case No. 1:17-cv-01156-TNM JOHN J. SULLIVAN, ACTING SECRETARY OF STATE,1 et al. Defendants. MEMORANDUM OPINION Under 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. 1 Pursuant to Fed. R. Civ. P. 25(d), the Acting Secretary of State has been substituted for Rex W. Tillerson, his predecessor. 1 I. Background Dr. 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. Dr. 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 ...

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