Castro v. Mayorkas, 2:21-CV-00315-SAB

CourtUnited States District Courts. 9th Circuit. Eastern District of Washington
PartiesELTON HERNANDEZ CASTRO; and KRISTINE NICHOLLE HERNANDEZ, Plaintiffs, v. ALEJANDRO MAYORKAS, United States Secretary of the Department of Homeland Security; ANTONY J. BLINKEN, United States Secretary of State; and ERIC S. COHAN, Consul General of the United States, City of Ciudad Juarez, Defendants.
Decision Date11 April 2022
Docket Number2:21-CV-00315-SAB


ALEJANDRO MAYORKAS, United States Secretary of the Department of Homeland Security; ANTONY J. BLINKEN, United States Secretary of State; and ERIC S. COHAN, Consul General of the United States, City of Ciudad Juarez, Defendants.

No. 2:21-CV-00315-SAB

United States District Court, E.D. Washington

April 11, 2022



Before the Court is Defendants' Motion to Dismiss the Amended Complaint, ECF No. 6. Plaintiffs are represented by Clayton Cook-Mowery. Defendants are represented by Elissa Fudim. The motion was considered without oral argument. Having considered the briefing and the applicable caselaw, the Court denies Defendants' motion.


U.S. citizens and lawful permanent residents of the United States can petition for an immigrant visa for their immediate noncitizen relative by engaging in a two-step process. First, the U.S. citizen or lawful permanent resident must file


a petition with U.S. Citizenship and Immigration Services (“USCIS”) known as a Form I-130 (Petition for Alien Relative). See 8 U.S.C. § 1154(a)(1); 8 C.F.R. § 204.2. Second, if the petition is approved, the noncitizen can apply to the State Department for a visa. See 8 U.S.C. §§ 1201(a), 1202(a). As part of the visa application process, the noncitizen must appear for an in-person interview at a U.S. consulate abroad. 22 C.F.R. §§ 42.61-62.

However, if the noncitizen applying for the visa has been unlawfully present in the United States for more than one year, the noncitizen must submit a Form I-601A, Application for Provisional Unlawful Presence Waiver, prior to departing the United States for their consulate interview. Otherwise, if the noncitizen departs the United States without receiving this waiver, they become inadmissible to the United States and are ineligible for a visa for ten years from their date of departure. 8 U.S.C. § 11282(a)(9)(B); but see also 8 C.F.R. § 212.7(e) (“A pending or approved provisional unlawful presence waiver does not constitute a grant of a lawful immigration status or a period of stay authorized by the Secretary.”).

The decision whether to grant or deny a visa application rests with the consular officer. See 8 U.S.C. § 1201(a)(1). If the consular officer finds that the noncitizen is ineligible for a visa, the officer must deny the visa. 8 U.S.C. § 1201(g). Moreover, if the consular officer finds that the noncitizen is ineligible based on a ground of inadmissibility other than unlawful presence in the United States, the noncitizen's provisional unlawful presence waiver is automatically revoked. 8 C.F.R. § 212.7(e)(14)(i). In order to request reconsideration of a visa denial, the noncitizen must (1) remain outside of the United States; (2) reapply for a new provisional unlawful presence waiver; and (3) after obtaining this waiver, request reconsideration of their visa application. See id.; 22 C.F.R. § 42.81(e). Upon denial of a visa application, if the noncitizen (1) requests reconsideration within one year of the denial and (2) provides evidence that overcomes the ground


of ineligibility on which the denial was based, the consulate officer must reconsider the denial. 22 C.F.R. § 42.81(b), (e).

As part of the visa application process, the noncitizen must submit to a physical and mental examination. 8 U.S.C. § 1201(d). If the medical examination is performed abroad, the examination is conducted by a panel physician selected by the U.S. Department of State embassies and consulates.[1] After the examination, the panel physician will complete certain forms, which they then submit to the consular office. A noncitizen can be found ineligible for a visa if they do not meet certain medical eligibility requirements, including if the noncitizen has not received the vaccinations recommended by the Advisory Committee for Immunization Practices. 8 U.S.C. § 1182(a)(1)(A)(ii) (“Any [noncitizen] . . . who has failed to present documentation of having received vaccination against vaccine-preventable diseases, which shall include . . . any [] vaccinations against vaccine-preventable diseases recommend by the Advisory Committee for Immunization Practices . . . is inadmissible.”).

Facts and Procedural History

The following facts are drawn from Plaintiffs' First Amended Complaint, ECF No. 5.

Plaintiffs Elton Hernandez Castro (“Mr. Hernandez Castro”) and Kristine Nicholle Hernandez (“Ms. Hernandez”) are a married couple. Ms. Hernandez is a U.S. citizen, whereas Mr. Hernandez Castro is not.

On July 30, 2018, Mrs. Hernandez filed a Form I-130 Family Petition on behalf of Mr. Hernandez Castro, which was approved on March 22, 2019. On November 14, 2019, Mr. Hernandez Castro then applied for a Form I-601A


(Application for Provisional Unlawful Presence Waiver), which was approved on April 30, 2021. Finally, on September 27, 2021, Mr. Hernandez Castro was informed that his consular interview for an immigrant visa had been scheduled for October 7, 2021 in Mexico. Mr. Hernandez Castro was also informed that, as part of his visa application, he was required to undergo a medical examination on October 5, 2021, also in Mexico.

On October 1, 2021, the Advisory Committee for Immunization Practices added the COVID-19 vaccination to its recommendations for all immigrant visa applicants. However, agency regulations also set out circumstances under which blanket waivers of this vaccination requirement were appropriate, including if the panel physician performing the medical examination determined that the vaccine was “not routinely available” and was not expected to be available within four months following the examination date.

Here, when Mr. Hernandez Castro appeared for his medical examination on October 5, 2021, he was not vaccinated for COVID-19. However, Mr. Hernandez Castro alleges that the panel physician performing his medical examination failed to consider whether the COVID-19 vaccine was routinely available in Mexico. In fact, Mr. Hernandez Castro alleges that the physician told him that this determination was one that would be made by the consulate, rather than by the physician.

When Mr. Hernandez Castro attended his consulate interview on October 7, 2021, he was told that his immigration visa was denied on two grounds: (1) because he had not received the COVID-19 vaccine, as required by the CDC; and (2) because he had been found to be inadmissible for having been unlawfully present in the United States. Additionally, because Mr. Hernandez Castro was found to be inadmissible on a basis other than unlawful presence, the consulate revoked his previously-approved Form I-601A (Application for Provisional Unlawful Presence Waiver).


After his visa denial, Mr. Hernandez Castro obtained the COVID-19 vaccination. He states that he is now fully vaccinated and has provided this proof of vaccination to both the panel physician and the consulate in Mexico. However, Plaintiffs state that Defendants have not reconsidered Mr. Hernandez Castro's initial visa denial.

Plaintiffs filed their Complaint on November 3, 2021. ECF No. 1. Plaintiffs then filed an Amended Complaint on January 11, 2022, with the consent of Defendants' counsel. ECF No. 5. In the First Amended Complaint, Plaintiffs alleged claims for declaratory and injunctive relief under the Due Process Clause of the Fifth Amendment to the U.S. Constitution and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551-559. Specifically, Plaintiffs alleged that Defendants violated due process and the APA when the panel physician failed to consider whether the vaccine was routinely available, which led to the denial of Mr. Hernandez Castro's visa application. Plaintiffs also pled a mandamus claim and requested an order (1) requiring Defendants to reconsider their initial visa denial; and (2) if, upon reconsideration, Mr. Hernandez Castro was no longer found to be inadmissible on any other ground, requiring Defendants to reinstate his Form I-601A waiver.

Defendants filed the present Motion to Dismiss on January 25, 2022. ECF No. 6. The Court has not yet set a trial date in this matter.

Legal Standard

Federal Rule of Civil Procedure 12(b)(1) allows a defendant to move for dismissal if the plaintiff's complaint fails to sufficiently allege federal subject matter jurisdiction. However, “jurisdictional dismissals in cases premised on federal-question jurisdiction are exceptional” and are permitted only when the claim is “patently without merit.” Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987).


When the jurisdictional question is intertwined with the merits of the case, the matter is treated nearly like a Rule 12(b)(6) motion. A jurisdictional determination is intertwined with the merits of a case when a statute provides the basis for both subject-matter jurisdiction and the plaintiff's substantive claim for relief. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039-40 (9th Cir. 2004).

Rule 12(b)(6) allows a party to move for dismissal if the plaintiff has failed to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Dismissal under this rule is only proper if there is either a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Taylor v. Yee, 780 F.3d 928, 935 (9th Cir. 2015); Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). When considering a 12(b)(6) motion, the court accepts the allegations in the complaint as true and construes the pleading in the light most favorable to the party opposing the motion. Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). However, this does not require the Court “to accept as true legal conclusions couched as factual allegations.” Parents for Privacy v. Barr, 949 F.3d 1210,...

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