Moreira v. Cissna

Citation442 F.Supp.3d 850
Decision Date03 March 2020
Docket NumberCIVIL ACTION NO. 19-CV-1642
Parties Anayeli MOREIRA, et al. v. L. Francis CISSNA, et al.
CourtU.S. District Court — Eastern District of Pennsylvania

Jack John Herzig, Law Offices of Jack Herzig, Philadelphia, PA, Joshua E. Bardavid, Bardavid Law PC, New York, NY, for Anayeli Moreira, Gustavo Maximino Moreira.

Simon Nakajima, DOJ-USAO, New York, NY, Anthony St. Joseph, U.S. Attorney's Office, Philadelphia, PA, for L. Francis Cissna, Kristjen Nielsen, Donald Neufeld, Mike Pompeo, William Barr, John Tavenner.

MEMORANDUM

SCHMEHL, J.

In this immigration case, Plaintiffs seek judicial review of a consular officer's decision to deny the visa application of Wife-Plaintiff, a citizen of Mexico. Citing the doctrine of consular nonreviewability, the Defendants have filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, the motion is granted.

STANDARD OF REVIEW

In considering a motion to dismiss pursuant to Rule 12(b)(6), the district court should "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. Cnty. of Allegheny , 515 F.3d 224, 233 (3d Cir. 2008) (internal quotation marks and citations omitted). "To 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. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The plaintiff need not satisfy any "probability" requirement, but must set forth "more than a sheer possibility" that the defendant's actions give rise to the claim. Id.

FACTS

The Complaint alleges that Wife-Plaintiff is a native and citizen of Mexico. (Compl. ¶¶ 7,15.) Husband-Plaintiff is a citizen of the United States. (Id. at ¶¶ 8,17.) Plaintiffs reside with their three children in Easton, Pennsylvania. (Id. ¶¶ 7,8.) All three children are citizens of the United States. (Id. ¶¶ 8,17.)

Wife-Plaintiff was born in Mexico in 1988 and entered the United States without inspection on July 27, 1992. (Id. ¶ 15.) At the time of her entry, Wife-Plaintiff was three years old. (Id. )

In March of 2007, Wife-Plaintiff left the United States and returned to Mexico to assist with family issues. (Id. ¶ 16.) At the time she departed the United States, she was 18 years and 5 months old. (Id. ) She resided in Mexico for approximately one year and eight months before returning to the United States without inspection in November, 2008. (Id. ) The Complaint alleges that Wife-Plaintiff was subsequently "subject to removal proceedings which were administratively closed by the Immigration Court in Philadelphia, Pennsylvania on September 30, 2015." (Id. )

On January 4, 2016, Wife-Plaintiff married Husband-Plaintiff. (Id. ¶ 17.) Husband-Plaintiff subsequently filed an I-130 Petition for Alien Relative on behalf of Wife-Plaintiff with United States Citizenship and Immigration Services ("USCIS"). (Id. ¶ 19.) On May 9, 2016, the USCIS approved the Petition. (Id. )

On February 21, 2017, Wife-Plaintiff applied to USCIS for a I-601A Application for Provisional Unlawful Presence Waiver, citing the extreme hardship her removal would cause her husband and children. (Id. ¶ 20.) Wife-Plaintiff "disclosed on the application that she had entered the U.S. as a three-year old minor child and subsequently left and reentered the United States, relying on the "minor exception" under INA § 212(a)(9)(B)(iii)(I) for admissibility purposes." (Id. )

On June 15, 2017, USCIS approved Wife-Plaintiff's I-601A provisional waiver, finding that her removal and/or inadmissibility would result in extreme hardship to Husband-Plaintiff. (Id. ¶ 21.) As a result, on October 4, 2017, an immigration judge in Philadelphia terminated removal proceedings based on Wife-Plaintiff's "eligibility for an immigrant visa and for the purposes of traveling to the U.S. Consulate in Ciudad Juarez, Mexico." (Id. ¶ 22.)

On January 5, 2018, Wife-Plaintiff appeared at the U.S. Consulate in Ciudad Juarez, Mexico for an appointment on her approved I-601A waiver. (Id. ¶ 23.) Wife-Plaintiff alleges she "appeared for her appointment relying on INA § 212 and its interpretation by the U.S. Consulate in Ciudad Juarez as was the general practice of the consul." (Id. ¶ 24.) On that same date, the U.S. Consulate in Ciudad Juarez did not find Wife-Plaintiff was eligible for an immigrant visa and reserved decision. (Id. ¶ 25.)

On June 20, 2018, a consular officer found Wife-Plaintiff ineligible for an immigrant visa and revoked her approved I-601A waiver "based on the ‘additional ineligibility under section 212(a)(9)(C)(i)(I).’ " (Id. ¶ 26.) "The officer stated an ‘individual found ineligible under section 212(a)(9)(C)(i)(I) cannot apply for permission to reenter the United States until 10 years after his or her date of last departure. There are no exceptions to this ineligibility. Therefore, [Wife-Plaintiff] cannot apply for permission to reenter the United States until after January 2018."1 (Id. )

The consular officer did not provide an initial explanation as why Wife-Plaintiff was found inadmissible under INA § 212(a)(9)(C) or why the "minor exception" did not apply. (Id. 27.)

The Complaint alleges that "[in] practice at the U.S. Consulate in Ciudad Juarez, the ‘minor exception’ had been applied to the INA 212(a)(9)(C) permanent bar for aliens who have been unlawfully present for an aggregate of one year, ... who then returned to the U.S. without inspection." (Id. 48.) However, the Complaint alleges that "[i]n this case, and upon information and belief, the U.S. Consulate in Ciudad Juarez has now been taking the position that the unlawful presence exception for minors does not apply to the permanent bar of INA § 212(a)(9)(C), on the basis that the statutory exception is only listed under INA § 212(a)(9)(B)." (Id. 49.)

The Complaint alleges that "[u]pon inquiry by counsel, the Visa Office indicated that [i]t is well settled that the ‘minor exception’ to the accrual of unlawful presence applies only to section INA § 212(a)(9)(B), and does not apply to INA § 212(a)(9)(C),’ citing only to an administrative agency memorandum from May 6, 2009, Neufeld, Scialabba, Chang USCIS Memorandum: Revision to and Redesignation of Adjudicator's Field Manual Chapter 30.1(d) as Chapter 40.9, May 6, 2009 at page 28.’ The basis for the Visa Office's finding was that this memorandum stated: ‘There are two reasons for this conclusion: 1) the terms of sections 212(a)(9)(B)(iii) and (iv) of the Act refer only to specific subsections of 212(a)(9)(B)(i) of the Act; and 2) Inadmissibility under section INA § 212(a)(9)(C) rests on a more serious immigration violation than simple unlawful presence.’ " (Id. ¶ 28.)

As a result of the denial of her immigrant visa, Wife-Plaintiff is stranded in Mexico with no means of returning to the United States for 10 years. (Id. ¶¶ 7, 8.)

In Count One, Plaintiffs assert that "[t]he agency's finding of additional inadmissibility under INA § 212(a)(9)(C)(i)(I) is inconsistent with the plain language of the statute and therefore not in accordance with the law." (Id. at ¶ 33.) In Count Two, Plaintiffs assert that "[t]he unannounced change in the interpretation of unlawful presence at the U.S. Consulate in Ciudad, Juarez, Mexico as it relates to minors is an arbitrary and capricious agency action." (Id. at 47.) Count Three asserts a violation of procedural due process and erroneous deprivation of fundamental liberty interest and Count Four asserts a claim for violation of substantive due process. (Id. at ¶¶ 67-86.)

Plaintiffs request that the Court declare the agency's actions unlawful and Wife-Plaintiff admissible as a matter of law under the plain statutory terms of INA § 212(a)(9)(B) and INA § 212(a)(9)(C); declare the agency's policy reversal to be arbitrary and capricious and a violation of the due process clause of Fifth and Fourteenth Amendments; order USCIS to reinstate the I-601A approved petition and to compel the agency to grant Wife-Plaintiff's immigration visa. (Id. , Prayer for Relief, a-d.)

Defendants argue that all of Plaintiffs' claims are barred by the doctrine of consular nonreviewability. That doctrine "holds that a consular official's decision to issue or withhold a visa is not subject to judicial review, at least unless Congress says otherwise." Saavedra Bruno v. Albright , 197 F.3d 1153, 1159 (D.C. Cir. 1999). See also Morfin v. Tillerson , 851 F.3d 710, 711 (7th Cir. 2017) ("[T]he fact remains that for more than a hundred years courts have treated visa decisions as discretionary and not subject to judicial review for substantial evidence and related doctrines of administrative law."); Onuchukwu v. Clinton , 408 F. App'x 558, 560 (3d Cir. 2010) (non-precedential) ("The widely applied doctrine of consular nonreviewability generally places a consular official's decision to issue or withhold a visa outside the scope of judicial review.")

In Kleindienst v. Mandel , 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972), the United States Supreme Court carved out a narrow exception to the doctrine of consular nonreviewability for situations in which denial of a visa violates the constitutional rights of a U.S. citizen. Id. at 765-770, 92 S.Ct. 2576. However, the Mandel Court held that even where it is alleged that the denial of a visa violates the constitutional rights of a U.S. citizen, courts must give deference to the consular officer's decision so long as "that reason was facially legitimate and bona fide." Id. at...

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