                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 06a0020p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                         X
                                                          -
 ABASS BANGURA; ISATU BANGURA; ABASS

                                 Plaintiffs-Appellants, -
 BANGURA, JR., and ABUBAKAR BANGURA,
                                                          -
                                                          -
                                                              No. 04-3531

                                                          ,
            v.                                             >
                                                          -
                                                          -
                                                          -
 MARK HANSEN, District Director, United States

                                                          -
 Department of Homeland Security; TODD SMITH,

                                                          -
 United States Deportation Officer, United States
                                                          -
 Department of Homeland Security; THOMAS RIDGE,
                                                          -
 Secretary, United States Department of Homeland
 Security,                                                -
                                Defendants-Appellees. -
                                                          -
                                                         N
                          Appeal from the United States District Court
                         for the Southern District of Ohio at Columbus.
                     No. 03-00241—Edmund A. Sargus, Jr., District Judge.
                                        Argued: September 15, 2005
                                   Decided and Filed: January 18, 2006
              Before: CLAY and GIBBONS, Circuit Judges; STEEH, District Judge.*
                                             _________________
                                                   COUNSEL
ARGUED: E. Dennis Muchnicki, Dublin, Ohio, for Appellants. Andrew M. Malek, UNITED
STATES ATTORNEY, Columbus, Ohio, for Appellees. ON BRIEF: E. Dennis Muchnicki,
Dublin, Ohio, for Appellants. Christopher R. Yates, UNITED STATES ATTORNEY, Columbus,
Ohio, for Appellees.




        *
         The Honorable George Caram Steeh, United States District Judge for the Eastern District of Michigan, sitting
by designation.


                                                         1
No. 04-3531           Bangura, et al. v. Hansen, et al.                                         Page 2


                                        _________________
                                            OPINION
                                        _________________
         CLAY, Circuit Judge. Plaintiffs Abass and Isatu Bangura appeal an order of the United
States District Court for the Southern District of Ohio dismissing their complaint against Defendants
Mark Hansen, the District Director of the Department of Homeland Security, Bureau of Citizenship
and Immigration Services, Deportation Officer Todd Smith, and then-Secretary of the Department
of Homeland Security Thomas Ridge for failure to exhaust administrative remedies and failure to
state a claim. Plaintiffs allege that Defendants’ denial of Plaintiff Abass Bangura’s spousal
immigration petition, as well as Defendants’ denial of Don Chisley’s spousal immigration petition
made on behalf of Plaintiff Isatu Bangura, violate the Due Process Clause of the Fourteenth
Amendment and were contrary to the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101,
et seq., in violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. For the reasons
set forth below, we AFFIRM the district court’s dismissal of Plaintiffs’ claims.
                                               I.
                                          BACKGROUND
A.      Procedural History
        Plaintiffs Abass and Isatu Bangura filed the instant lawsuit on March 19, 2003, claiming
violations of the INA, the APA, and the Due Process Clause of the Fourteenth Amendment in
connection with Defendants’ denial of Abass Bangura’s spousal immigration petition made on
behalf of his wife, Isatu Bangura. On May 20, 2003, Defendants moved to dismiss Plaintiffs’
complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter
jurisdiction, or in the alternative, under Federal Rule of Civil Procedure 12(b)(6) for failure to state
a claim upon which relief may be granted. The district court issued an opinion and order on March
22, 2004, granting Defendants’ motion to dismiss. Plaintiffs filed a timely notice of appeal with this
Court on April 19, 2004.
B.      Substantive Facts
        The Banguras have been married for six years. They have two children and are expecting a
third. This marriage, however, is Mrs. Bangura’s third marriage. Prior to marrying Mr. Bangura,
Mrs. Bangura was married to Ibrahim Sesay, a citizen of Sierra Leone, and Don Chisley, an
American citizen. Mrs. Bangura met her first husband, Ibrahim Sesay, while visiting the United
States on a sixth month tourist visa in 1991. Her marriage to Sesay was apparently brief, and on
March 30, 1993, she married Chisley.
        Two months after Chisley and Mrs. Bangura married, Chisley filed an I-130 spousal
immigration petition with the Immigration and Naturalization Service (“INS”), seeking to classify
Mrs. Bangura as the spouse of a United States citizen. Chisley’s I-130 petition stated that Mrs.
Bangura and Sesay were divorced on July 12, 1991. The INS requested a copy of the divorce decree
from Mrs. Bangura’s marriage to Sesay, and Chisley provided a document entitled “Certificate of
Final Divorce” from the National Mosque of Freetown in Sierra Leone. After being informed by
the American Embassy in Sierra Leone that the National Mosque of Freetown did not exist and that
all divorce decrees are in English and Arabic, the INS determined that the divorce decree was
fraudulent. Furthermore, a check with Chisley’s employers established that Chisley had informed
them he was single and provided them with a different address for himself than the one he had given
to the INS as his marital address. Accordingly, on February 6, 1998, the INS concluded, “from the
foregoing and from the lack of joint personal properties, liquid assets, and liabilities that your
No. 04-3531           Bangura, et al. v. Hansen, et al.                                          Page 3


marriage to the beneficiary is merely a poorly rehearsed attempt to evade the immigration laws for
the purpose of obtaining benefits.” INS Priv. Ltr. Rul. A72-725-743 (Feb. 6, 1998).
        The INS gave Chisley 90 days to submit additional evidence; however, Chisley did not
respond. On April 22, 1998, Mrs. Bangura sent a letter to the INS requesting that Chisley’s I-130
application be withdrawn because she and Chisley had separated. Mrs. Bangura now claims that
she ended her marriage to Chisley after learning that he fathered a child out of wedlock and
concealed it from her. The INS issued a final denial of Chisley’s petition on June 12, 1998, without
responding to Mrs. Bangura’s request. The INS sent a letter to Mrs. Bangura on October 20, 1998,
informing her of the formal denial of Chisley’s petition but without indicating the reason for the
denial.
        Mrs. Bangura and Chisley were divorced in Maryland on February 1, 1999. Subsequently,
on February 23, 1999, Mrs. Bangura married Mr. Bangura, who is a naturalized United States
citizen. Mr. Bangura filed an I-130 spousal immigration petition on behalf of Mrs. Bangura on May
11, 1999. The INS denied Mr. Bangura’s petition on July 5, 2001, citing the earlier fraud finding
from Chisley’s petition: “The record is clear that the beneficiary had entered into a prior marriage
for the purpose of evading the immigration laws. Accordingly, the petition you filed cannot be
approved, as the beneficiary is statutorily ineligible for the benefit sought.” INS Priv. Ltr. Rul.
A72-725-743 (July 5, 2001) (emphasis in original). Mr. Bangura filed an administrative appeal from
this decision, which is apparently still pending.
        In addition to filing an administrative appeal of the denial of Mr. Bangura’s spousal
immigration petition, Plaintiffs filed the instant lawsuit in the district court. They contend that their
rights were violated when Ohio district director of the Department of Homeland Security, Mark
Hansen, used the 1998 fraud finding to deny Mr. Bangura’s petition. Plaintiffs argue that the
administrative rules prohibit them from appealing the 1998 decision to the Board of Immigration
Appeals (“BIA”), and thus, collateral use of the 1998 fraud finding deprives them of procedural due
process, interferes with their marriage in violation of substantive due process, and is contrary to the
INA in violation of the APA. Plaintiffs also claim that the 1998 fraud finding was not supported
by substantial evidence.
        Defendants moved to dismiss Plaintiffs’ complaint on the ground that the district court
lacked subject matter jurisdiction because Mr. Bangura has failed to exhaust administrative
remedies on his I-130 petition, and on the ground that the complaint failed to state a claim for relief.
Thereafter, the district court dismissed Plaintiffs’ procedural due process claim holding that although
Plaintiffs’ failure to exhaust administrative remedies on the INS’ denial of his I-130 petition did not
deprive the court of subject matter jurisdiction, it nonetheless rendered the exercise of its own
jurisdiction inappropriate for reasons of judicial economy. Additionally, the district court rejected
Plaintiffs’ substantive due process claim based on the fundamental right to marriage on the ground
that Plaintiff failed to state a claim. According to the district court, the issue is not whether Mrs.
Bangura has a right to marry, but rather, whether she has a right to be granted legal residency
through her marriage to Mr. Bangura. Plaintiffs now appeal the district court’s ruling.
No. 04-3531               Bangura, et al. v. Hansen, et al.                                                      Page 4


                                                       II.
                                                   DISCUSSION
A.       Plaintiffs’ Constitutional Claims
         1.       Standard of Review
        This Court reviews a district court’s order dismissing a claim for lack of jurisdiction or
failure to state a claim de novo. Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002); Haio
v. INS, 199 F.3d 302, 304 (6th Cir. 1999).
         2.       Analysis
                  a.        Jurisdiction1
        The Plaintiffs’ failure to exhaust their administrative remedies does not deprive this Court
or the district court of subject matter jurisdiction, and the district court abused its discretion in
dismissing Plaintiffs’ constitutional claims for failure to exhaust their administrative remedies in the
name of judicial economy. Where a statute requires a plaintiff to exhaust his or her administrative
remedies before seeking judicial review, federal courts do not have subject matter jurisdiction to
review the plaintiff's claim until the plaintiff has exhausted his or her administrative remedies.
Perkovic v. INS, 33 F.3d 615, 619 (6th Cir. 1994) (stating that while exhaustion is prudential in most
cases, it is jurisdictional where Congress has placed it in the statute granting federal courts
jurisdiction). “However, the Supreme Court has long held that . . . the exhaustion requirement is
far from absolute. Of paramount importance to any exhaustion inquiry is congressional intent. . .
. [W]here Congress has not clearly required exhaustion, sound judicial discretion governs.” Dixie
Fuel Co. v. Comm’r of Social Security, 171 F.3d 1052, 1058-59 (6th Cir. 1999) (quoting McCarthy
v. Madigan, 503 U.S. 140, 144 (1992)). Exhaustion of administrative remedies may not be required
in cases of non-frivolous constitutional challenges to an agency’s procedures. S. Ohio Coal Co. v.
Office of Surface, Mining, Reclamation and Enforcement, 20 F.3d 1418, 1425 (6th Cir. 1994). In
the immigration context, several circuits have indicated that “constitutional challenges to the INA
and INS procedures and some due process claims do not require exhaustion because the BIA does
not have the power to adjudicate these claims.” Sundar v. INS, 328 F.3d 1320, 1325 (11th Cir.
2003) (citing Bernal-Vallejo v. INS, 195 F.3d 56, 64 (1st Cir. 1999); Akinwunmi v. INS, 194 F.3d
1340, 1341 (10th Cir. 1999); Mojsilovic v. INS, 156 F.3d 743, 748 (7th Cir. 1998); Rashtabadi v.
INS, 23 F.3d 1562, 1567 (9th Cir. 1994)).
        In this case, the district court erred in holding that Plaintiffs were required to exhaust their
administrative remedies before filing in federal court. It is undisputed that no statute or
administrative rule required Plaintiffs to exhaust their administrative remedies. See 8 § C.F.R.
103.3(a)(ii) (providing that a petitioner “may” appeal to the BIA); Hoang v. Comfort, 282 F.3d 1247,
1254 (10th Cir. 2002), abrogated on other grounds, Demore v. Kim, 538 U.S. 510 (2003) (noting
that the INA only requires plaintiffs to exhaust administrative remedies in removal proceedings).
Thus, whether Plaintiffs should be required to exhaust their administrative remedies is a matter of
sound judicial discretion. See Dixie Fuel Co., 171 F.3d at 1058-59. Here, requiring Plaintiffs to

         1
           We address exhaustion under jurisdiction because Defendants argue that Plaintiffs’ failure to exhaust
administrative remedies deprives this Court of subject matter jurisdiction. Thus, this Court must address whether failure
to exhaust deprives this Court of jurisdiction as a threshold matter. Steel Co. v. Citizens For a Better Env’t, 523 U.S.
83, 94-95 (1998) (citing Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884)) (“The requirement that
jurisdiction be established as a threshold matter ‘spring[s] from the nature and limits of judicial power of the United
States’ and is ‘inflexible and without exception.’”). We note, however, that exhaustion is primarily a prudential doctrine
and failure to exhaust only deprives this Court of subject matter jurisdiction when exhaustion is required by a
jurisdictional statute. Perkovic v. INS, 33 F.3d 615, 619 (6th Cir. 1994).
No. 04-3531           Bangura, et al. v. Hansen, et al.                                               Page 5


exhaust their administrative remedies does not serve the interests of judicial economy. Although
the BIA undoubtedly could grant Plaintiffs some relief and possibly render Plaintiffs’ procedural
due process claim moot, it does not have the authority to adjudicate Plaintiffs’ substantive due
process claim. Akninwumni, 194 F.3d at 1341. Moreover, as discussed infra at Section II, this
Court must address the merits of one of Plaintiffs’ APA claims. It does not serve the interests of
judicial economy to dismiss Plaintiffs’ claims for failure to exhaust when the federal courts must
nonetheless hear other claims that are integrally related to the dismissed claims. Therefore, the
district court abused its discretion in dismissing Plaintiffs’ procedural due process claim for failure
to exhaust administrative remedies.
               b.       Failure to State a Claim
                       i.       Substantive Due Process
        The district court correctly held that Plaintiffs failed to state a claim for relief based on
substantive due process. Generally, a plaintiff adequately alleges a substantive due process claim
where the plaintiff pleads that a statute or government action burdens a fundamental right and cannot
withstand strict scrutiny. Kallstrom v. City of Columbus, 136 F.3d 1055, 1064 (6th Cir. 1998):.
Montgomery v. Carr, 101 F.3d 1117, 1124 (6th Cir. 1996) (holding that government actions
interfering with marriage are subject to strict scrutiny).      In immigration cases, however, federal
courts apply a much more deferential standard of review to substantive due process challenges even
where the immigration law interferes with a plaintiff’s fundamental rights. Fiallo v. Bell, 430 U.S.
787, 798-99 (1977). This Court upholds immigration statutes so long as they are “conceivably
related to the achievement of a federal interest.” Almario v. Att’y General, 872 F.2d 147, 152 (6th
Cir. 1989) (denying equal protection claim that involved the “fundamental right” to marry); see also
Anetekhai v. INS, 876 F.2d 1218,1222 (5th Cir. 1989) (applying “minimum scrutiny” to a
substantive due process claim that involved the right to marry); Barmo v. Reno 899 F. Supp. 1375,
1381 (E.D. Pa. 1995) (holding a statute need only be “supported by facially legitimate and bona fide
reason” where it burdened the right to marry). This standard may be even lower than rational basis
review. Fiallo,430 U.S. at 798-99 (1977). In Fiallo, the Supreme Court stated,
       Appellants suggest that the distinction drawn in s [sic] 101(b)(1)(D) is
       unconstitutional under any standard of review since it infringes upon the
       constitutional rights of citizens and legal permanent residents without furthering any
       legitimate governmental interest . . . . Those are admittedly the consequences of
       the congressional decision not to accord preferential status to this particular class of
       aliens, but the decision nonetheless remains one solely for the responsibility of
       Congress and wholly outside the power of this Court to control. . . . [I]t is not the
       judicial role in cases of this sort to probe and test the justifications for the legislative
       decision.
Id. (internal citations omitted). But see Azizi v. Thornburgh, 908 F.2d 1130, 1133 n.2 (2d Cir. 1990)
(stating that the facially legitimate and bona fide reason test is the same as the rational basis test).
        The limited role of courts in reviewing the substantive policy embodied in immigration
statutes derives from the Constitution’s grant of plenary power to exclude aliens to Congress. See,
e.g., Landon v. Plasencia, 459 U.S. 21, 32 (1982) (noting that an alien’s initial admission into the
United States is a privilege and wholly within the sovereign’s power to exclude aliens); Fiallo, 430
U.S. at 792; Galvan v. Press, 347 U.S. 522, 529, 531-32 (1954) (holding that while aliens may
receive procedural due process, the court’s ability to review the substantive policy of immigration
statutes is limited to review for rationality). The Supreme Court has “long recognized the power to
expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political
departments largely immune from judicial control. . . . [T]he power over aliens is of a political
No. 04-3531           Bangura, et al. v. Hansen, et al.                                         Page 6


character and therefore subject to only narrow judicial review.” Fiallo, 430 U.S. at 792 (citations
omitted).
        In this case, the statute in question, 8 U.S.C. § 1154(c), easily withstands this deferential
standard of review. Section 1154(c) denies aliens immediate relative visas when they marry
American citizens for the purpose of obtaining U.S. residence. 8 U.S.C. § 1154(c). Congress
presumably enacted § 1154(c) to prevent immigration fraud, which is a legitimate federal interest.
Thus, § 1154(c) is “conceivably related to a federal interest,” and this Court must uphold its
constitutionality even assuming Plaintiffs have established that it interferes with their fundamental
right to marry. See Almario, 872 F.2d at 152.
                       ii.     Procedural Due Process
        Similarly, Plaintiffs failed to a state a procedural due process claim because Plaintiffs failed
to properly allege a liberty or property interest. The Fourteenth Amendment prohibits the
government from depriving persons of “life, liberty, or property, without due process of law.” U.S.
Const. amend. XIV, § 1. The Due Process Clause protects aliens physically present in the United
States as well as citizens. Landon, 459 U.S. at 32-33 ; Mathews v. Diaz, 426 U.S. 67, 77 (1976).
Due process rights only attach, however, once a plaintiff asserts a liberty or property interest. See
also Almario, 872 F.2d at 151. To establish a liberty or property interest, the plaintiff must
demonstrate that the Constitution or a federal or state statute grants him a protected right. See
Almario, 872 F.2d at 151.
        In this case, Plaintiffs assert that the Constitution grants them a liberty interest in their
marriage, and thus, that the government must give them due process before denying Mrs. Bangura
a visa. While this Court recognizes that the Banguras have a fundamental right to marry, it does not
agree with Plaintiffs’ characterization of the nature of the government’s infringement. A denial of
an immediate relative visa does not infringe upon their right to marry. As this Court stated in
Almario, “[t]he Constitution does not recognize the right of a citizen spouse to have his or her alien
spouse remain in the country.” Almario, 872 F.2d at 151.
        Plaintiffs’ procedural due process claim in this case is indistinguishable from the claim that
this Court rejected in Almario. In Almario, this Court addressed a challenge to 8 U.S.C. § 1154(h),
which requires an alien who marries an American citizen while in deportation proceedings to live
outside the United States for two years before the alien's spouse is permitted to apply for an
immediate relative visa. Id. The plaintiffs in Almario argued that 8 U.S.C. § 1154(h) infringed
upon their procedural due process rights because it presumed that their marriage was fraudulent
without giving them the opportunity to prove otherwise. Id. This Court rejected the plaintiffs’
argument stating that “[t]he Constitution does not recognize the right of a citizen spouse to have his
or her alien spouse remain in the country.” Id.
        While Almario rejected a procedural due process claim predicated on the right to marry, it
did not address whether 8 U.S.C. §§ 1151 and 1154 create a property interest protected by the Due
Process Clause.       The issue of whether §§ 1151 and 1154 creates a protected interest in an
immediate relative visa, however, is not before this Court. Plaintiffs’ complaint does not clearly
allege that the INA creates a protected interest. Similarly, neither Plaintiffs’ answer to Defendants’
motion to dismiss nor any of their briefs on appeal argue that the INA creates a protected interest.
 Plaintiffs attempt to raise the issue during oral arguments is insufficient to present it for appellate
review. See Fed. R. App. Pro. 28(a)(5) (requiring appellants to raise all issues in their briefs);
No. 04-3531                Bangura, et al. v. Hansen, et al.                                                          Page 7


Bickel v. Korean Air Lines Co., 96 F.3d 151, 153 (6th Cir. 1996). Thus, this Court need not decide
the issue. 2
B.       Plaintiffs’ APA Claims
        The district court held that Plaintiffs waived their APA claims. Because we find that the
Plaintiffs did not waive their APA claims, we address issues not discussed by the district court,
namely, Defendants’ contentions that: (1) this court lacks subject matter jurisdiction because
Plaintiffs failed to exhaust their administrative remedies; (2) Plaintiffs lack standing to bring their
APA claims; and (3) Plaintiffs fail to state a claim under the APA. Because we find that Mr.
Bangura does not have standing to challenge the denial of Chisley’s petition, that neither Plaintiff
states a claim for relief based on the denial of Mr. Bangura’s petition, and that Mrs. Bangura loses
on the merits of her challenge to Chisley’s petition, we affirm the district court’s dismissal of
Plaintiffs’ APA claims.
         1.        Standard of Review
        This Court reviews a district court’s dismissal for failure to prosecute under the abuse of
discretion standard. Carver v. Bunch, 946 F.2d 451, 452 (6th Cir. 1991). We review all other issues
de novo because the district court did not reach them.
         2.        Analysis
                   a.        Waiver or Failure to Prosecute
         The district court abused its discretion in holding that Plaintiffs waived their APA claims.
In a footnote in its opinion, the district court disposed of all of Plaintiffs’ APA claims. The district
reasoned that Plaintiffs waived the APA claims by failing to address them in Plaintiffs’ response to
defendant’s motion to dismiss. In Carver v. Bunch, this Court held that a district court abused its
discretion in dismissing a plaintiff’s claims solely because the plaintiff failed to respond to the
defendant’s motion to dismiss for failure to state a claim. 946 F.2d at 452. It reasoned that such a
dismissal was akin to a dismissal for failure to prosecute, and thus, governed by the standard set
forth in Rule 41 of the Federal Rules of Civil Procedure. Id. It then determined that in order for a
district court to dismiss a plaintiff’s claims in response to a 12(b)(6) motion, the district court must
“conclude ‘beyond a doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief,’” regardless of whether the plaintiff responded. Id. (quoting Haines v.
Kerner, 404 U.S. 519 (1972)). Analogizing to a summary judgment motion, the court also noted that
the Federal Rules of Civil Procedure place the burden on the moving party to demonstrate that the
plaintiff failed to state a claim for relief. Id. at 454-55. In this case, the district court failed to
address whether Plaintiff’s complaint stated a claim for relief under the APA and dismissed the APA
claims solely because Plaintiffs failed to respond to Defendant’s motion. Thus, the district court’s
dismissal rested on impermissible grounds.
         2
            There is a decent amount of support for the proposition that §1154(b) creates an interest to which procedural
due process rights attach. Supreme Court precedent makes clear that non-discretionary statutes create property interests
for the purpose of procedural due process. Town of Castle Rock v. Gonzales, 125 S. Ct. 2796, 2803 (2005) (citing Board
of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1997)). Section 1154(b) states that the Attorney General, “shall.
. . approve the petition [for immediate relative visa].” 8 U.S.C. § 1154(b) (emphasis added). The D.C. circuit explicitly
held that this language created a right protected by procedural due process. Escobar v. INS, 896 F.2d 564 (D.C. Cir.
1990). Additionally, Fifth Circuit dicta implied that it would uphold a due process claim under § 1154(b). Anetekhai
v. INS, 876 F.2d 1218, 1223 (5th Cir. 1989). In rejecting a substantive due process challenge to §1154(h), the section
at issue in Almario, the court stated, “[c]ertainly, if Congress had conditioned an alien's eligibility for a status adjustment
on the existence of a bona fide marriage, procedural due process would require that the couple be given an opportunity
to establish that fact before an adjustment could be denied.” Id. If this right exists, however, it clearly belongs to the
citizen spouse and not the alien spouse. Wright v. INS,379 F.2d 275, 276 (6th Cir. 1967) (holding that an alien spouse
has no protected interest in an I-130 petition).
No. 04-3531               Bangura, et al. v. Hansen, et al.                                                       Page 8


       Moreover, the factual basis underlying the district court’s determination that Plaintiffs
waived their APA claims is clearly erroneous. The district court states that Plaintiffs “fail to even
mention [their APA claims] in their Memorandum.” (Op. & Or. Granting Mot. to Dismiss, March
23, 2003.) In fact, half of Plaintiffs’ memorandum in response to Defendants’ motion to dismiss is
devoted to their APA claims and rebutting Defendants’ contention that Plaintiffs do not have
standing to seek judicial review for their APA claims.
        Finally, the district court erroneously placed the burden on Plaintiffs to demonstrate that they
stated a claim for relief. As noted above, this Court has determined that on a 12(b)(6) motion, the
moving party bears the burden of demonstrating that the plaintiff failed to state a claim. Carver, 946
F.2d at 455. In this case, Defendants did not argue in their memorandum in support of their motion
to dismiss that Plaintiffs failed to state a claim for relief under the APA. Instead, Defendants argued
that the court lacked subject matter jurisdiction to hear any of Plaintiffs’ claims and that Plaintiffs
failed to state a substantive or procedural due process claim. Because Defendants did not offer a
single argument to support their assertion that Plaintiffs failed to state a claim for relief under the
APA, Defendants failed     to meet their burden of proof, and the district court should have dismissed
Defendants’ motion.3
                  b.        Failure to Exhaust Administrative Remdies
         Plaintiffs’ failure to exhaust their administrative remedies does not deprive this court of
subject matter jurisdiction over Plaintiffs’ APA claims. The law governing the exhaustion of APA
claims differs from that governing exhaustion in other contexts. It is governed by 5 U.S.C. § 704;
Darby v. Cisneros, 509 U.S. 137, 146-47 (1993). Section 704 only requires a plaintiff to exhaust
his or her administrative remedies where a statute or agency rule makes the remedies mandatory.
Id.; see also Dixie Fuel Co., 171 F.3d at1059. Where an intra-agency appeal is optional, however,
the APA does not require a plaintiff to appeal prior to filing suit in federal court. Darby, 509 U.S.
at 147 (“Section [704] explicitly requires exhaustion of all intra-agency appeals mandated either by
statute or by agency rule; it would be inconsistent with the plain language of § [704] for courts to
require litigants to exhaust optional appeals as well.”)
        In this case, it is undisputed that the INA and its implementing regulations do not require
Plaintiffs to exhaust their administrative remedies before seeking review in federal court. 8 C.F.R.
§ 103.3(a)(ii) (providing that a party “may” appeal to the BIA). This is because Plaintiffs do not
appeal an order of removal but the denial of spousal immigration petition. In contrast to orders of
removal, the INA does not require aliens to appeal denials of spousal immigration petitions to the
BIA before seeking relief in federal court. Compare id. with 8 U.S.C. § 1252(d)(1) (requiring aliens
to appeal to BIA before appealing an order of removal in federal court). Therefore, this Court does
not have the authority to require Plaintiffs to appeal to the BIA before bringing their claims under
the APA in federal court.




         3
          Nonetheless, this Court can address Plaintiffs’ failure to state a claim because this Court may uphold a district
court’s order on any ground supported by the record. City Mgmt. Corp. v. U.S. Chemical Corp., 43 F.3d 244, 251 (6th
Cir. 1994).
No. 04-3531               Bangura, et al. v. Hansen, et al.                                                      Page 9


                  c.        Standing
        Section 10 of the APA grants all parties “adversely affected or aggrieved” by a final agency
action prudential standing to bring suit in federal court.4 5 U.S.C. § 702. A person is “adversely
affected or aggrieved” within the meaning of the APA if his or her claim meets the “zone of interest”
test. Nat’l Credit Union Admin. v. First Nat’l Bank, 522 U.S. 479, 487-90 (1998) (emphasis in
original) (holding that the APA incorporates the “zone of interest” test); Fed. Election Comm’n v.
Akins, 524 U.S. 11, 19-20 (1998) (holding that Congress waives all prudential limitations on
standing except for “the zone of interest” test when it grants “aggrieved” parties the right to sue).
To meet the requirements of the “zone of interest test,” a plaintiff must establish that the interest he
or she seeks to protect, “is arguably within the zone of interests to be protected [] by the statute”
under which the plaintiff sues. Nat’l Credit Union Admin., 522 U.S. at 492. The Supreme Court
has repeatedly emphasized that the “zone of interest” test does not require a plaintiff to establish that
Congress specifically intended to benefit the plaintiff. Id.; see also Clarke v. Security Indus. Ass’n,
479 U.S. 388, 399-400 (1987) (“‘[the] zone of interest’ test is a guide for deciding whether, in view
of Congress' evident intent to make agency action presumptively reviewable, a particular plaintiff
should be heard to complain of a particular agency decision. In cases where the plaintiff is not itself
the subject of the contested regulatory action, the test denies a right of review if the plaintiff's
interests are so marginally related to or inconsistent with the purposes implicit in the statute that it
cannot reasonably be assumed that Congress intended to permit the suit. The test is not meant to be
especially demanding; in particular, there need be no indication of congressional purpose to benefit
the would-be plaintiff.”); Courtney v. Smith, 297 F.3d 455, 461 (6th Cir. 2002). Rather, the “zone
of interest” test entails a two part inquiry. First, the court must determine what interests the statute
arguably was intended to protect, and second, the court must determine whether the “plaintiff’s
interests affected by the agency action in question are among them.” Nat’l Credit Union Admin.,
522 U.S. at 492; see also Courtney, 297 F.3d at 461.
        In this case, both Plaintiffs’ interests fall within the 8 U.S.C. §§ 1151(a)’s and 1154(a)’s
“zone[s] of interest,” and thus, both Plaintiffs have prudential standing to sue under the APA.
Congress enacted the immediate relative visa as a part of the Immigration Reform Act of 1965. S.
Rep. No. 748 (1965), as reprinted in 1965 U.S.C.C.A.N. 3328, 3341. The Immigration Reform Act
of 1965 replaced a quota system based on national origin with a system based on preferences to
relatives of U.S. citizens and aliens legally residing in the United States. Id. at 3329. The new
system aims to prevent family members from being separated. Id. at 3332. “Reunification of
families is to be the foremost consideration . . . . In order that the family unit can be preserved as
much as possible, parents of adult U.S. citizens, as well as spouses and children, may enter the
country without numerical limitation.” Id. Because the interest both Plaintiffs seek to protect – the
preservation of their family unit – is the primary interest the INA’s immediate relative visa
provisions were designed to protect, both Plaintiffs’ interests fall within the 8 U.S.C. § 1151(a)’s
and 1154(a)’s zone of interest.
        Although Mrs. Bangura, as an alien, probably cannot claim that Congress intended to
specifically benefit her by enacting 8 U.S.C. §§ 1151 and 1154, whether Congress intended to
benefit aliens is not relevant to this court’s inquiry. See Nat’l Credit Union Admin., 522 U.S. at
492. The relevant inquiry is whether Congress intended to insure that spouses of American citizens
could live in the United States with their families. See id. Thus, the fact that Mrs. Bangura is an
alien does not deprive her of the right to sue under the APA. Ghaly v. INS, 48 F.3d 1426,1434 n.6
         4
           The government’s argument that only the citizen spouse has “standing” to appeal to the BIA under the INA
is irrelevant to Plaintiffs’ standing to sue in federal district court under the APA. Ghaly v. INS, 48 F.3d 1426, 1434 n.6
(7th Cir. 1995). The cases the government cites discuss the authority of the BIA to hear an appeal from a non-citizen.
Id.; In re Sano, 19 I.&N. Dec. 299 (BIA 1985). They do not address the authority of a federal court to hear claims.
Ghaly, 48 F.3d at 1434 n.6. Instead, the issue of standing under the APA is governed by an extensive body of Supreme
Court case law. See infra; Ghaly, 48 F.3d at 1434 n.6.
No. 04-3531            Bangura, et al. v. Hansen, et al.                                         Page 10


(7th Cir. 1995) (holding that immigrant beneficiary of an employer’s visa application fell within the
visa statute’s “zone of interest,” and thus, had standing to challenge the visa’s revocation under the
APA); Taneja v. Smith, 795 F.2d 355, 358 n.7 (4th Cir. 1986) (same).
        Nonetheless, while both Plaintiffs are “adversely affected” within the meaning of the APA,
Mr. Bangura does not have constitutional standing to challenge the INS’s denial of Chisley’s
petition. Article III standing requires that a plaintiff suffer injury-in-fact that is fairly traceable to
the defendant’s illegal conduct and redresssable by the requested relief. Allen v. Wright, 468 U.S.
737, 750 (1984). Mr. Bangura does not allege any injury-in-fact that is fairly traceable to the INS’s
denial of Chisley’s petition. See id. The denial did not deprive Mr. Bangura of any legal right.
Additionally, it did not result in the loss of his wife’s company because denial of Chisley’s petition
did not result in the deportation of Mrs. Bangura. Finally, it did not cause the denial of Mr.
Bangura’s petition. It was not the actual denial of Chisley’s petition that prejudiced Mr. Bangura’s
petition but the alleged collateral use of that decision in the DHS’ denial of Mr. Bangura’s own
petition. This collateral use is properly characterized as a part of DHS’s denial of Mr. Bangura’s
petition and not the INS’s denial of Chisley’s petition. Furthermore, to the extent Mr. Bangura
alleges injury-in-fact through the collateral use of the INS’s denial of Chisley’s petition, it is not
redressable through a challenge to Chisley’s petition. To grant relief with respect to the alleged
collateral use of the 1998 fraud finding, this Court would have to reverse the DHS’s denial of Mr.
Bangura’s petition. Thus, we find that Mr. Bangura does not have constitutional standing to
challenge the denial of the INS’s denial of Chisley’s petition.
                d.      Failure to State a Claim
        To state a claim for relief under the APA, a plaintiff must allege that his or her injury stems
from a final agency action for which there is no other adequate remedy in court. 5 U.S.C. § 704;
Gillis v. U.S. Dep’t of Health and Human Servs., 759 F.2d 565, 575 (6th Cir. 1985.) Because the
INS’s denial of Chisley’s petition is a final agency action, for which there is no other adequate
remedy in court, Mrs. Bangura states a claim for relief under the APA. Neither Plaintiff, however,
can challenge the DHS’s denial of Mr. Bangura’s petition under the APA because Mr. Bangura’s
pending appeal renders the decision non-final.
                        i.      Finality
       An action is final where it: (1) marks the “consummation of the agency’s decision-making
process;” and (2) determines rights and obligations or occasions legal consequences. Bennett v.
Spear, 520 U.S. 154, 177-78 (1997); Airbrake Sys., Inc. v. Mineta, 357 F.3d 632, 639 (6th Cir.
2004). Additionally, the APA defines final action to include:
        agency action otherwise final . . . whether or not there has been presented or
        determined an application for . . . any form of reconsideration, or, unless the agency
        otherwise requires by rule and provides that the action meanwhile is inoperative, for
        an appeal to superior agency authority.
5 U.S.C. § 704. The Supreme Court has noted in dicta, however, that this “language has long been
construed by this and other courts merely to relieve parties from the requirement of petitioning for
a rehearing before seeking judicial review . . . but not to prevent petitions for reconsideration that
are actually filed from rendering the orders under reconsideration non final.” Interstate Com.
Comm’n v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 284-85 (1987).
       In this case, Plaintiffs allege three purported final agency actions: (1) the INS’s denial of
Chisley’s petition; (2) the DHS’s denial of Mr. Bangura’s petition; and (3) the 1998 fraud finding.
Only the INS’s denial of Chisley’s petition is a final agency action under the APA. The INS’s denial
of Chisley’s petition is final because it marked the consummation of the INS’s decision-making
No. 04-3531           Bangura, et al. v. Hansen, et al.                                        Page 11


process with regard to Chisley’s visa petition, and it determined the right of Chisley to a spousal visa
for Mrs. Bangura. See Bennett, 520 U.S. at 177-78.
          Although the same reasoning applied to the DHS’s initial denial of Mr. Bangura’s petition,
Mr. Bangura’s decision to take his optional appeal rendered the earlier decision non-final. Bhd. of
Locomotive Eng’rs, 482 U.S. at 284. While the language of the APA quoted above admittedly
seems to require a different outcome – “whether or not there has been presented . . . an application
for . . . any form of reconsideration” – the Supreme Court and D.C. Circuit have determined that it
does not. Id.; Outland v. Civil Aeronautics Bd., 284 F.2d 224, 227 (D.C. Cir. 1960). Thus, this
Court defers to their interpretation of § 704.
        In contrast, the 1998 fraud finding was never a final decision. It did not mark the
consummation of the INS’s decision-making process. See Bennett, 520 U.S. at 177-78. Once the
INS determined that Chisley’s marriage was fraudulent, the INS was still required to determine the
legal consequences of its factual finding under the INA. The application of the law to the factual
findings resulted in a final action: the INS’s denial of Chisley’s petition.
                       ii.     No Other Adequate Remedy
        Finally, Mrs. Bangura has no other adequate remedy to challenge the INS’s denial of
Chisley’s petition. Section 704’s requirement that there be no other “adequate remedy in court”
insures that the APA’s general grant of jurisdiction to review agency decisions is not duplicative of
more specific statutory procedures for judicial review. See Bowen v. Massachusetts, 487 U.S. 879,
903 (1988) (noting that provisions providing for appeal directly to federal courts of appeal or panels
of district court judges could not be avoided by suing under the APA). The essential inquiry is
whether another statutory scheme of judicial review exists so as to preclude review under the more
general provisions of the APA. Id. This inquiry differs from the exhaustion inquiry in that the
focus of this inquiry is not on available administrative remedies, but on available federal court
remedies. Compare Bowen, 487 U.S. at 903 (discussing § 704’s requirement that there be no other
“adequate remedy in court” ) with Darby, 509 U.S. at 145-46 (discussing § 704’s exhaustion
requirement). As the INA does not specifically provide for federal court review of denials of visa
petitions, there is no other adequate remedy in court that would preclude APA review. See
generally, 8 U.S.C. §§ 1151-1378 (not providing for appeals to district courts from denials of
immediate relative visa petitions); 8 C.F.R. §§ 1-499 (same). Thus, Mrs. Bangura states a claim
under the APA based on the INS’s denial of Chisley’s petition, and the district court correctly
dismissed all other APA claims.
               e.      Merits of Plaintiffs’ APA Claims
       As discussed above, Plaintiffs’ can only state a claim for relief based upon the INS’s denial
of Chisley’s petition, and only Mrs. Bangura has constitutional standing to challenge that decision.
Thus, this Court only needs to address the merits of Mrs. Bangura’s challenge to the INS’s denial
of Chisley’s petition. Because we find that the INS did not violate the APA or the INA in denying
Chisley’s petition, we affirm the district court's dismissal of Mrs. Bangura’s APA claim.
                       i.      Standard of Review under the APA
       The APA directs courts to review agency actions under a deferential standard. Carabell v.
U.S. Army Corp. of Eng’rs, 391 F.3d 704, 707 (6th Cir. 2004); N.E. Ohio Reg. Sewer Dist. v. Env’t
Prot. Agency, 411 F.3d 726, 731 (6th Cir. 2003). A court may not set aside or hold unlawful an
agency action unless that action is arbitrary, capricious, an abuse of discretion or otherwise not in
accordance with law. 5 U.S.C.§ 706(2)(A); see also Carabell, 391 F.3d at 707; N.E. Ohio Reg.
Sewer Dist., 411 F.3d at 731. An agency decision is arbitrary and capricious if the agency fails to
examine relevant evidence or articulate a satisfactory explanation for the decision. Motor Vehicles
No. 04-3531             Bangura, et al. v. Hansen, et al.                                       Page 12


Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-43 (1983). The reviewing court
“may not supply a reasoned basis for the agency's action that the agency itself has not given.” Id.
at 43. However, “[e]ven when an agency explains its decision with less than ideal clarity, a
reviewing court will not upset the decision on that account if the agency’s path may reasonably be
discerned.” Alaska Dep’t of Env’t Conservation v. EPA, 540 U.S. 461, 497 (2004).
                         ii.     The INA And Its Implementing Regulations
        In addition to arbitrary and capricious review, the APA authorizes courts to review agency
actions for conformity with law. 5 U.S.C.§ 706(2)(A); see also Carabell, 391 F.3d at 707; N.E.
Ohio Reg. Sewer Dist., 411 F.3d at 731. In this case, the relevant law is contained in the INA and
its implementing regulations, which govern petitions for immediate relative visas. In particular, the
issues in this case revolve around the application of § 204(c) of the INA, which requires the
Attorney General to deny a visa petition made on behalf of any alien whom the Attorney General
determines “previously [] accorded or [] sought to be accorded, an immediate relative or preference
status as the spouse of a citizen of the United States . . . by reason of a marriage determined by the
Attorney General to have been entered into for the purpose of evading immigration laws.” 8 U.S.C.
§ 1154(c). Under the INA, a determination of marriage fraud made pursuant to § 204(c) must be
supported by substantial and probative evidence. In re Agninaoay, 16 I.&N. Dec. 545, 546 (BIA
1978); In re Tawfik, 20 I.&N. Dec. 166, 167 (BIA 1990). Therefore, this Court must overturn any
finding of marriage fraud not supported by substantial and probative evidence.
                         iii.    The INS’s Denial of Chisley’s Petition Did Not Violate the APA
                                 or the INA
        The INS did not violate the APA when it denied Chisley’s petition for a spousal visa because
the denial was not arbitrary and capricious and was supported by substantial evidence. The denial
was not arbitrary and capricious because the INS supplied Chisley with a reasoned explanation.
As the INS explained, the evidence indicated that Mrs. Bangura’s marriage to Chisley was
fraudulent, and thus, the INA required it to deny Chisley's petition. Furthermore, the INS’s factual
finding of fraud was supported by substantial and probative evidence. Mrs. Bangura’s divorce
decree from her first marriage appeared to be fraudulent. Next, Chisley and Mrs. Bangura were not
living together. Additionally, Chisley and Mrs. Bangura did not own joint property. While Mrs.
Bangura may offer a different explanation for these facts, an alternative explanation does not negate
the reasonableness of the INS’s finding of fraud. Finally, the Banguras point to no provision of the
INA that the INS violated in denying Chisley’s petition. Therefore, we find that Mrs. Bangura does
not prevail on the merits of her APA claim and affirm the district court’s dismissal.
                                                III.
                                            CONCLUSION
          For the reasons set forth above, we AFFIRM the district court’s dismissal of all of Plaintiffs’
claims.
