Colindres v. U.S. Dep't of State

• Decision Date: 14 December 2021
• Docket Number: Case No. 21-cv-348 (GMH)
• Citation: 575 F.Supp.3d 121
• Parties: Kristen H. COLINDRES, et al., Plaintiffs, v. U.S. DEPARTMENT OF STATE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

575 F.Supp.3d 121

Kristen H. COLINDRES, et al., Plaintiffs,

v.U.S. DEPARTMENT OF STATE, et al., Defendants.

Case No. 21-cv-348 (GMH)

United States District Court, District of Columbia.

Signed December 14, 2021

Christopher Westley Dempsey, Abel Bean Law, P.A., Jacksonville, FL, for Plaintiffs.

Diana Viggiano Valdivia, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

G. MICHAEL HARVEY, United States Magistrate Judge

Plaintiffs are a long-married couple with a young daughter who lived together in the United States for more than thirteen years. Plaintiff Kristen H. Colindres is a United States citizen. Her spouse, Plaintiff Edvin A. Colindres Juarez ("Colindres Juarez"), is a citizen of Guatemala who, after returning to his native country for a consular interview—one of the final steps in procuring a U.S. immigrant visa—was denied such a visa by the United States Embassy in Guatemala City on the basis that there is a reasonable ground to believe he seeks to enter the United States to engage in unlawful activity. See 8 U.S.C. § 1182(a)(3)(A)(ii).¹ Plaintiffs' primary argument is that the decision denying Colindres Juarez a visa violates their Fifth Amendment right to "[f]reedom of personal choice in matters of marriage and family life" because it was not based on a facially legitimate and bona fide reason (ECF No. 2, ¶¶ 40–45), although they also assert some additional constitutional and statutory claims. In response, Defendants—the Department of State, the Secretary of State, and the Consul General of the United States in Guatemala City (collectively, "Defendants" or the "government") contend that the bulk of Plaintiffs' claims either fail under the doctrine of "consular non-reviewability" or, at the very least, cannot survive the constricted judicial review permitted when there is a plausible claim that the consular decision violated a plaintiff's constitutional rights.

The Court does not take lightly the allegations of hardship that a consular official's decision to deny Colindres Juarez a visa has worked upon Plaintiffs and their child. However, the outcome here is largely dictated by controlling Supreme Court and D.C. Circuit precedent. Defendants' motion to dismiss must therefore be granted.²

I. BACKGROUND

According to the complaint,³ Colindres Juarez, a Guatemalan citizen born in 1980, was raised in Guatemala until he was fourteen years old, when he entered the United States "without inspection" and moved to New York City to live with family. ECF No. 2, ¶¶ 4, 15–17; ECF No. 1-1 at 2. A few years later, he relocated to Jacksonville, Florida. ECF No. 2, ¶ 17. In December 2006, he married Colindres, who is a United States citizen. Id. , ¶¶ 19, 22. They have a daughter who was born in 2008. Id. , ¶ 23.

In March 2015, Colindres filed with the U.S. Citizenship and Immigration Service ("USCIS") a Form I-130 for the benefit of her husband, which is the first step in the process of "helping an eligible relative apply to immigrate to the United States and get [a] Green Card." Id. , ¶ 24; I-130, Petition for Alien Relative (Nov. 24, 2021), https://www.uscis.gov/i-130. That petition was approved in August 2015. ECF No. 2, ¶ 25. In May 2018, Colindres Juarez filed with USCIS a Form I-601A requesting a "provisional waiver of the unlawful presence grounds of inadmissibility" under the INA "before departing the United States to appear at a U.S. Embassy or Consulate for an immigration visa interview." Id. , ¶ 26; I-160A, Application for Provisional Unlawful Presence Waiver (Oct. 18, 2021), https://www.uscis.gov/i-601a. Colindres thereafter submitted to fingerprinting for the purposes of background checks, including a criminal history check against the records of the Federal Bureau of Investigation. ECF No. 2, ¶ 27. USCIS approved his provisional waiver application in January 2019. Id. , ¶ 28. In April 2019, Colindres Juarez filed with the Department of State a Form DS-260, Immigrant Visa and Alien Registration Application; he paid all required fees, submitted all required additional forms, and responded to all requests for evidence by the National Visa Center. Id. , ¶¶ 29–30.

In June 2019, Colindres Juarez traveled to Guatemala for the purposes of his consular interview, which was held in early July 2019. Id. , ¶¶ 30–31. Pursuant to the embassy's request, he submitted his criminal record file from the Public Ministry of Guatemala, which was clean. Id. , ¶¶ 32, 34–35. He attended a follow-up interview on August 8, 2019. Id. , ¶ 33; ECF No. 1-1 at 83. His counsel inquired about the status of his application repeatedly during the following months. ECF No. 2, ¶ 36. At the end of April 2020, his counsel sought assistance from the Office of the Legal Advisor for Consular Affairs,⁴ noting that Colindres Juarez had been "stuck in Guatemala for nine months due to administrative processing" of his visa application and indicating that the hold-up might be "due to a tattoo that an adjudicating officer found suspicious." ECF No. 1-1 at 70. On May 6, 2020, the embassy informed Colindres that her husband had been "formally refused a visa under section 212(a)(3)(A)(ii) of the [INA] as an alien for whom there is reason to believe is a member of a known criminal organization." ECF No. 2, ¶ 37; see also ECF No. 1-1 at 68.

Plaintiffs sought reconsideration of the decision denying Colindres Juarez an immigrant visa from the Immigrant Visa Section of the U.S. Embassy in Guatemala in September 2020. ECF No. 1-1. That application included letters of support from numerous members of his family—his wife, his daughter, his mother- and father-in-law, and various aunts, uncles and cousins, including the aunt and uncle who served as guardians for him when he came to the United States (id. at 97–100, 104–06, 108–09, 111, 113, 114–21, 123–24, 176–78, 192); family friends, one of whom had known him since high school (id. at 95–96, 101–03, 122, 125, 138–39); co-workers (id. at 126–136); and his priest (id. at 94). It also included a submission asserting that none of his tattoos were gang-related and explaining the meaning of each of them (id. at 141–52) and a series of photographs of him with his wife and child (id. at 154–72). Plaintiffs' counsel contacted the embassy for an update at the end of November 2020 and was informed that Colindres Juarez's "case [had] been given to the new arrived Immigrant Visa Chief who [would] review it in the coming weeks." ECF No. 1-2 at 2. The request for reconsideration was denied in December 2020. Id. at 4.

In February 2021, Plaintiffs filed their complaint in this Court. It alleges that "[t]he Embassy's refusal of [ ] Colindres Juarez's request for an immigrant visa ... implicates fundamental constitutional rights," particularly the "[f]reedom of personal choice in matters of marriage and family life" guaranteed to U.S. citizens. ECF No. 2, ¶¶ 42, 45. Based on that "straightforward notion" (id. , ¶ 44 (internal quotation marks omitted)), Plaintiffs allege that the government has violated the constitutionally protected rights to substantive due process; procedural due process; equal protection of the laws; and freedom speech, expression, and association. Id. , ¶¶ 86–108. They further contend that the decision denying Colindres Juarez a visa was neither facially legitimate nor bona fide, as required by Constitution, but rather made in bad faith; that the decision violates the INA and the Administrative Procedure Act ("APA"), 5 U.S.C. § 500 et seq. ; and that the provision pursuant to which Colindres Juarez was deemed inadmissible— 8 U.S.C. § 1182(a)(3)(A)(ii), which states that an alien is ineligible for a visa if he or she seeks to enter the United States "to engage solely, principally, or incidentally" in "unlawful activity"—is unconstitutionally vague. Id. , ¶¶ 109–141.

The government moved to dismiss the complaint, contending that because Plaintiffs have not plausibly alleged a constitutional violation, the doctrine of consular non-reviewability prohibits judicial review of the decision; that, even if they had plausibly alleged a constitutional violation, the decision was facially legitimate and bona fide, and thus satisfies the limited judicial review allowed of visa denials that burden a constitutional right; that Plaintiffs' statutory claims fail; and that the provision of the INA under which Colindres Juarez was deemed inadmissible is not unconstitutionally vague. ECF No. 10.

II. LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of a complaint on the basis that it fails to state a claim upon which relief can be granted.⁵ Fed. R. Civ. P. 12(b)(6). A court reviewing a 12(b)(6) motion must accept as true the well-pleaded factual allegations contained in the complaint, Atherton v. D.C. Office of Mayor , 567 F.3d 672, 681 (D.C. Cir. 2009), and construe those allegations "in the light most favorable to the plaintiff[ ]," Vick v. Brennan , 172 F. Supp. 3d 285, 295 (D.D.C. 2016). While the plaintiff need not make "detailed factual allegations" to avoid dismissal, he or she must provide "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Rather, the 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 Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). To meet this standard, the plaintiff must "plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. In addition to the allegations of the complaint, a court evaluating a motion under Rule 12(b)(6) may also consider "any documents either attached to or incorporated in the complaint[ ] and matters of which [the court] may...