Bagherian v. Pompeo

• Decision Date: 11 February 2020
• Docket Number: Civil No. 19-1049 (JDB)
• Citation: 442 F.Supp.3d 87
• Parties: Behzad BAGHERIAN, et al., Plaintiffs, v. Michael R. POMPEO, in his official capacity as U.S. Secretary of State, et al., Defendants.
• Court: U.S. District Court — District of Columbia

442 F.Supp.3d 87

Behzad BAGHERIAN, et al., Plaintiffs,

v.Michael R. POMPEO, in his official capacity as U.S. Secretary of State, et al., Defendants.

Civil No. 19-1049 (JDB)

United States District Court, District of Columbia.

Signed February 11, 2020

Brian Christopher Schmitt, Hake & Schmitt, New Windsor, MD, Shabnam Lotfi, Pro Hac Vice, Lotfi Legal LLC, Madison, WI, for Plaintiffs.

Marsha Wellknown Yee, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

JOHN D. BATES, United States District Judge Plaintiffs Behzad Bagherian and Faezeh Abbasi brought this action against the U.S. government and various U.S. officials, seeking to compel the government under the Administrative Procedure Act ("APA") or the Mandamus Act to adjudicate Abbasi's visa application. Now before the Court is the government's motion to dismiss. For the reasons explained below, the Court will grant the motion and dismiss the case.

Background ¹

Bagherian is a U.S. citizen residing in Colorado. Petition for Writ of Mandamus ("Compl.") [ECF No. 1] ¶ 8. He is engaged to Abbasi, an Iranian national. Id. ¶¶ 2, 8. The couple wish to get married in, and then live together in, the United States. Id. ¶ 6, 36–37. On August 19, 2016, Bagherian filed a petition for a K-1 visa on behalf of Abbasi. Id. ¶¶ 1–2. Otherwise known as "fiancée visas," K-1 visas are available—if certain requirements are met—to aliens who intend to marry a U.S. citizen within 90 days of arrival in the United States. Visas for Fiancé(e)s of U.S. Citizens ("Visa Procedures"), https://www.uscis.gov/family/family-us-citizens/visas-fiancees-us-citizens. Filing a petition is just the first step in the lengthy, multistep K-1 visa process. The government must then approve the petition and send the application on to the National Visa Center ("NVC"), at which point the application is forwarded to the U.S. embassy or consulate where the alien fiancé(e) lives. Id. A consular officer in that office is responsible for interviewing the alien fiancé(e), reviewing the relevant documents, and requesting a background check. Id. If approved by the officer, a visa is issued to the alien fiancé(e). Id. He or she may then enter the United States and must marry the U.S. citizen indicated in the initial petition within 90 days of entry. Id.

Abbasi made it past the first several steps in this process: her petition was approved and forwarded on to the U.S. Embassy in Yerevan, Armenia, and a consular officer there interviewed her on November 29, 2016. Compl. ¶¶ 16–17. But she then entered a limbo period. After her interview, the officer informed her that her "visa application is temporarily refused under section 221(g) of the US Immigration and Nationality Act," pending the completion of administrative processing. Id. ¶ 17. Between November 2016 and December 2017, Bagherian reached out to the embassy at least five times, and even enlisted the help of a U.S. Senator from Colorado. Id. ¶¶ 19–25. Each time, the embassy informed Bagherian (and the Senator) that the case was "pending administrative processing." Id.

While Abbasi and Bagherian were waiting to hear from the Embassy, on September 24, 2017, President Trump issued Presidential Proclamation 9645. See 82 Fed. Reg. 45,161 (Sept. 24, 2017). Among other things, Proclamation 9645 barred entry into the United States of nationals from seven countries, including Iran, except as "subject to categorical exceptions and case-by-case waivers." Id. § 2. The Proclamation also established a waiver mechanism whereby consular officers may grant waivers to a foreign national if (and only if) the foreign national demonstrates that (1) "denying entry would cause the foreign national undue hardship"; (2) "entry would not pose a threat to the national security or public safety of the United States"; and (3) "entry would be in the national interest." Id. § 3(c). The President derived his authority to issue the Proclamation from the Immigration and Nationality Act, which affords presidents broad discretion to "suspend the entry of all aliens or any class of aliens" if they deem such a suspension to be in "the interests of the United States." See 8 U.S.C. § 1182(f) ; see also 82 Fed. Reg. at 45,161. The Proclamation was challenged in federal court, but its validity was ultimately upheld by the Supreme Court in Trump v. Hawaii, ––– U.S. ––––, 138 S. Ct. 2392, 2423, 201 L.Ed.2d 775 (2018).

On January 4, 2018, the Embassy emailed Abbasi and informed her that "a consular officer found [her] ineligible for a visa under Section 212(f) of the Immigration and Nationality Act, pursuant to Presidential Proclamation 9645." Compl. ¶ 26. The email also noted that the officer was "reviewing [her] eligibility for a waiver," but that her visa application would "remain refused" until the waiver process was complete. Ex. G to Pls.' Resp. in Opp'n to Mot. to Dismiss ("Pls.' Opp'n") [ECF No. 15-8] at 3.

Twice more thereafter, on April 10, 2018, and May 21, 2018, the Embassy emailed Abbasi asking for additional information regarding her eligibility for a waiver, including her original birth certificate and responses to a detailed questionnaire about her travel history and family. Compl. ¶¶ 28, 30. The May 21st email stated that the request was made "[a]s part of [Abbasi's] administrative processing." Ex. J to Pls.' Opp'n [ECF No. 15-11] at 2. Bagherian continued to reach out to the Embassy for status updates but was told only that "[a] consular officer is currently reviewing your case for eligibility for a waiver." Ex. L to Pls.' Opp'n [ECF No. 15-13] at 2. Throughout this period, the State Department's website stated that Abbasi's "immigrant visa application" was "currently undergoing necessary administrative processing." Ex. M to Pls.' Opp'n [ECF No. 15-14] at 2.

On April 14, 2019, about 28 months after Abbasi's interview at the U.S. Embassy and 15 months after Abbasi began being considered for a waiver, she filed this suit. She seeks a declaratory judgment under the APA directing the government to "complete administrative processing and render a decision on Plaintiffs' visa petition." Compl. ¶ 53. Alternatively, she seeks a writ of mandamus compelling the government to "issue a final decision." Id. ¶ 47. The government has moved to dismiss, arguing under Federal Rule of Civil Procedure 12(b)(1) that this Court lacks subject matter jurisdiction and under Rule 12(b)(6) that Abbasi has failed to state a claim.

Discussion

I. Legal Standard

When reviewing a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the Court "assume[s] the truth of all material factual allegations in the complaint and construe[s] the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged." Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (internal quotation marks omitted). "The plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence."

Didban v. Pompeo, 435 F.Supp.3d 168, 172–73 (D.D.C. Jan. 15, 2020) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ).

To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), "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) (internal quotation marks omitted). The complaint "must provide more than labels and conclusions; although it does not need detailed factual allegations, the factual allegations must be enough to raise a right to relief above the speculative level." Wash. All. of Tech. Workers v. U.S. Dep't of Homeland Sec., 892 F.3d 332, 343 (D.C. Cir. 2018) (internal quotation marks omitted).

II. Analysis

A. Jurisdiction

The government argues that this Court lacks subject matter jurisdiction over Abbasi's suit, citing both the consular non-reviewability doctrine² and mootness. Neither jurisdictional bar applies here.

The doctrine of consular non-reviewability "holds that a consular official's decision to issue or withhold a visa is not subject to judicial review." Saavedra Bruno v. Albright, 197 F.3d 1153, 1159 (D.C. Cir. 1999). In other words, "[c]onsular officers have complete discretion over issuance and revocation of visas," id. at 1158 n.2, "even where it is alleged that the consular officer failed to follow regulations, where the applicant challenges the validity of the regulations on which the decision was based, or where the decision is alleged to have been based on a factual or legal error," Chun v. Powell, 223 F. Supp. 2d 204, 206 (D.D.C. 2002) (internal citations omitted).

The government contends that the doctrine bars this Court from reviewing the consular officer's decision, on January 4, 2018, to refuse Abbasi's visa application. See Decl. of Chloe Dybdahl [ECF No. 14-1] ¶ 6. True enough. However, Abbasi is not seeking review of that decision. Indeed, she is not seeking review of any decisions at all. Instead, she seeks review of the government's failure to adjudicate her waiver eligibility—the failure to make a decision—within a reasonable time.³ The government itself acknowledges that "Abbasi is undergoing consideration for a waiver of the Proclamation's entry restrictions." Id. ¶ 7. The doctrine of consular non-reviewability is therefore inapplicable to this action, because the doctrine "is not triggered until a consular officer has made a decision with respect to a particular visa application." Nine Iraqi Allies Under Serious Threat Because of Their Faithful Serv. to the U.S. v. Kerry, 168 F. Supp. 3d 268, 290 (D.D.C. 2016). At least five other district courts in recent months have reached the same conclusion in similar cases involving the government's failure to adjudicate waiver eligibility under Presidential Proclamation 9645. See Moghaddam v. Pompeo, 424 F.Supp.3d...