Bautista-Rosario v. Mnuchin

• Decision Date: 22 September 2021
• Docket Number: Civil Action No. 1:20-cv-2782 (CJN)
• Citation: 568 F.Supp.3d 1
• Parties: Felix Ramon BAUTISTA-ROSARIO, et al., Plaintiffs, v. Steven T. MNUCHIN Secretary of the Treasury, et al., Defendants.
• Court: U.S. District Court — District of Columbia

568 F.Supp.3d 1

Felix Ramon BAUTISTA-ROSARIO, et al., Plaintiffs,

v.Steven T. MNUCHIN Secretary of the Treasury, et al., Defendants.

Civil Action No. 1:20-cv-2782 (CJN)

United States District Court, District of Columbia.

Signed September 22, 2021

Linda George, Law Office of Linda George, Hackensack, NJ, for Plaintiffs Felix Ramon Bautista-Rosario, Felix Ramon Bautista-Abreu.

Stephen McCoy Elliott, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

CARL J. NICHOLS, United States District Judge Felix Ramon Bautista-Rosario is a Senator of the Dominican Republic. He and several members of his family challenge their public designations under Section 7031(c) of the Department of State Foreign Operations, and Related Programs Appropriations Act, and Bautista-Rosario challenges his designation by the Department of the Treasury's Office of Foreign Assets Control pursuant to Executive Order 13818. See generally Compl., ECF No. 1; Section 7031(c) of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2018 ( Pub. L. 115-141, Div. K., 132 Stat. 348 (Mar. 23, 2018)) ("Section 7031(c)"). Defendants move to dismiss Counts I–IV—the claims directed exclusively at State Department actions—arguing that the Court lacks subject-matter jurisdiction and Plaintiffs fail to state claims upon which relief may be granted. See Defs.’ Partial Mot. to Dismiss, ECF No. 11. The Court agrees and thus grants Defendants’ Partial Motion to Dismiss in full.

I. Background

Section 7031(c) provides that the Secretary of State, upon "credible information" of involvement in "significant corruption" or "a gross violation of human rights," must publicly or privately designate officials of foreign governments and their immediate families as ineligible for entry into the United States. See Section 7031(c)(1)(A)–(B). An individual designated under Section 7031(c)(1)(B) is generally ineligible for a visa or entry into the United States. See Section 7031(c)(1)–(2). Since Section 7031(c)’s 2008 enactment, the Secretary has publicly designated more than 200 officials and their family members as ineligible for entry into the United States under the provision.¹

Prior to 2017, Bautista-Rosario regularly visited the United States for personal and professional reasons, including to "campaign among the Dominican diaspora" and to "pursue business interests and charitable efforts." See Compl. ¶ 13. Likewise, his family members also regularly visited the United States. See id. ¶¶ 14–21. For example, his wife alleges that she has visited the United States on occasion to manage her Florida property, and others have attended school or visited family in the States. See id. But on or about June 2, 2017, Bautista-Rosario and some of his family had their U.S. visas revoked. See id. ¶ 1.

In June 2018, the Department of State publicly designated Bautista-Rosario and several of his family members (none of whom allege American citizenship) as ineligible for entry into the United States under Section 7031(c). Id. ¶ 3. In its public statement, the State Department noted that the designation was justified "due to [Bautista-Rosario's] involvement in significant corruption," but did not elaborate.² On the same day, the Treasury Department's Office of Foreign Assets Control sanctioned Bautista-Rosario pursuant to Executive Order 13818 for "profiting off of humanitarian efforts related to rebuilding Haiti."³ See id. ¶ 4.

In September 2020, Senator Bautista and several of his family members⁴ filed this suit, advancing four claims exclusively against actions taken by the State Department and six against actions of the Treasury Department or both Departments. Plaintiffs assert they "are without any information concerning the substance of the allegations against them" see Compl. ¶ 7, vigorously dispute the allegations of corruption, and allege the Defendants have become "unwitting participa[nts]" in a "malicious campaign" orchestrated by Bautista-Rosario's political enemies in the Dominican Republic "to damage" his reputation. Compl. ¶ 1.

Defendants move to dismiss the four claims directed exclusively toward the actions of the State Department.

II. Legal Standard

The Court must dismiss any claim over which it lacks subject matter jurisdiction. Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp. , 549 U.S. 422, 430–31, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007) ("[A] federal court generally may not rule on the merits of a case without first determining that it has [subject-matter] jurisdiction[.]") (citing Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 93–102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ). Plaintiffs bears the burden of demonstrating that such jurisdiction exists. See Arpaio v. Obama , 797 F.3d 11, 19 (D.C. Cir. 2015). In considering a motion to dismiss, the Court must accept the facts alleged in the Complaint as true and draw all reasonable inferences from those facts in Plaintiffs’ favor. Humane Soc'y of the U.S. v. Vilsack , 797 F.3d 4, 8 (D.C. Cir. 2015). But the Court "do[es] not assume the truth of legal conclusions, nor do[es it] accept inferences that are unsupported by the facts set out in the complaint." Arpaio , 797 F.3d at 19 (internal quotation marks and citation omitted).

A motion to dismiss for failure to state a claim will be granted unless the Complaint contains, inter alia , "a short and plain statement of the claim showing that the pleader is entitled to relief." See Fed. R. Civ. P. 8(a)(2). In other words, the Complaint must be sufficient "to give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks omitted). Again, at the motion to dismiss stage, the Court must accept all facts alleged in the Complaint as true and draw all reasonable inferences from those facts in Plaintiffs’ favor. W. Org. of Res. Councils v. Zinke , 892 F.3d 1234, 1240–41 (D.C. Cir. 2018). But Plaintiffs’ obligation to state the grounds of their claims "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ; see Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (explaining a district court need not need accept legal conclusions set forth in the Complaint).

III. Analysis

A. Count I

Bautista-Rosario claims in Count One that the Secretary's decision to designate him and his family members as ineligible for entry into the United States under Section 7031(c) was arbitrary and capricious, violating the APA, 5 U.S.C. § 706. See Compl. ¶¶ 38–42. The government argues that this claim is nonjusticiable because, in the immigration context, Congress must affirmatively authorize judicial review and it has not done so—whether through Section 7031(c) or the APA. The Court agrees.

The Supreme Court has long held that Congress and the Executive control "the admission and exclusion of foreign nationals." Trump v. Hawaii , ––– U.S. ––––, 138 S. Ct. 2392, 2418, 201 L.Ed.2d 775 (2018). And that control is largely—even presumptively—immune from judicial oversight. See Fiallo v. Bell , 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977) ; United States ex rel. Knauff v. Shaughnessy , 338 U.S. 537, 543, 70 S.Ct. 309, 94 L.Ed. 317 (1950). The Supreme Court has reasoned that immigration policy and decisions to admit or exclude aliens are inherently political, implicating "the conduct of foreign relations, the war power, and the maintenance of a republican form of government." Harisiades v. Shaughnessy , 342 U.S. 580, 588–89, 72 S.Ct. 512, 96 L.Ed. 586 (1952). Courts are neither well-structured nor authorized to make such policies, and thus it is well-established that "it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien." Knauff , 338 U.S. at 543, 70 S.Ct. 309 ; see also Kerry v. Din , 576 U.S. 86, 86–87, 135 S.Ct. 2128, 192 L.Ed.2d 183 (2015). Absent such affirmative congressional authorization, judicial review of an alien's exclusion is ordinarily unavailable.

As a general matter, Congress has not authorized judicial review of visa denials, see, e.g. , 6 U.S.C. § 236(f) ("Nothing in this section shall be construed to create or authorize a private right of action to challenge a decision of a consular officer or other United States official or employee to grant or deny a visa."), nor visa revocations for aliens abroad, see 8 U.S.C. § 1201(i) ("[T]he consular officer or the Secretary of State may at any time, in his discretion, revoke" a visa and "[t]here shall be no means of judicial review ... of a revocation under this subsection.").⁵ And while Section 7031(c) designations are not merely visa denials or revocations, Plaintiffs have pointed to no other statute specifically authorizing judicial review of the designations.

Plaintiffs nonetheless argue that the Court may review their Section 7031(c) designations under the APA. See Compl. ¶¶ 38–42. Under the APA, judicial review of agency action is the norm. See, e.g. , 5 U.S.C. § 702 ; Lincoln v. Vigil , 508 U.S. 182, 190, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993). But by its own terms the APA does not apply "to the extent that ... [other] statutes preclude judicial review." 5 U.S.C. § 701(a)(1). The Supreme Court has interpreted this preclusion broadly, concluding that a statute may preclude APA review "not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved." Block v. Cmty. Nutrition Inst. , 467 U.S. 340, 345, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984) ; see also Sackett v. EPA , 566 U.S. 120, 128, 132 S.Ct. 1367, 182 L.Ed.2d 367 (2012).

Here, APA review is precluded because of the...