Keyhanpoor v. Blinken
| Decision Date | 28 September 2022 |
| Docket Number | Civil Action 21-1182 (TJK) |
| Parties | SHAGHAYEGH KEYHANPOOR et al., Plaintiffs, v. ANTONY BLINKEN et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Plaintiffs-two foreign visa applicants, two U.S. citizens, and a nonprofit-sued various federal officials to challenge the denial of visa applications under federal immigration law. They allege that consular officers refused to issue visas for the applicants because of their past service in the Iranian Revolutionary Guard Corps. Defendants moved to dismiss for lack of subject-matter jurisdiction and failure to state a claim. For the following reasons, the Court will grant Defendants' motion and dismiss the case.[1]
Under the Immigration and Nationality Act (“INA”) noncitizens living abroad must apply for and receive a visa to permanently reside in the United States. See 8 U.S.C. § 1101(a). If a noncitizen abroad has a U.S. citizen relative, that relative may file a Form I-130, Petition for Alien Relative with U.S. Citizenship and Immigration Services. See 8 U.S.C. § 1154; 8 C.F.R. § 204.1(a)(1). If approved, the noncitizen may submit a visa application to a local consulate and interview with a consular officer. See Ghadami v. United States Dep't of Homeland Sec., No. 19-cv-397 (ABJ), 2020 WL 1308376, at *1 (D.D.C. Mar. 19, 2020); 22 C.F.R. §§ 204.2(a)(3), 42.67(a)(3).
The decision whether to grant a visa lies with the consular officer. See 8 U.S.C. § 1201(a)(1); 22 C.F.R. § 42.81(a). But the INA itself sets out various grounds on which a noncitizen may be inadmissible and ineligible for a visa, including the Terrorism Related Inadmissibility Grounds (“TRIG”). 8 U.S.C. § 1182(a), (a)(3)(B). Among the TRIG classifications, members of terrorist organizations and those who have “received military-type training . . . from or on behalf of any organization that, at the time the training was received, was a terrorist organization” are inadmissible. Id. § 1182(a)(3)(B)(i)(V)-(VI), (VIII).
8 U.S.C. § 1182(a)(3)(B)(vi). The consular officer determines whether a visa applicant is inadmissible under TRIG. See 8 U.S.C. § 1201(g).
In 2019, the State Department designated the Iranian Revolutionary Guard Corps (“IRGC”) a Tier I Foreign Terrorist Organization under 8 U.S.C. § 1189.[2] Thus, any visa applicant who served in the IRGC after its Tier I designation took effect is inadmissible under TRIG. But an applicant who served before 2019 may still be inadmissible if a consular officer finds that the IRGC qualified as a Tier III organization while they served.
Mohsen Keyhanpoor and Mohammadsadegh Mehrabani Ardekani (the “IRGC Plaintiffs”) both served two-year terms in the IRGC many years ago. ECF. No. 20 (“Compl.”) ¶¶ 32, 42. They allege that “Iranian males who are legally required to enter the draft can be drafted into one of the three branches of the armed forces: the Army, Law Enforcement Force or IRGC, with no option to choose or right of refusal.” Id. ¶ 29. They also assert that failing to register for the draft or serve could have resulted in serious penalties, including the loss of civil rights or jail time. Id. ¶¶ 4-5. Keyhanpoor alleges that, beginning in 1996, he Id. ¶ 35. So too, Mehrabani Ardekani alleges “[h]e was randomly assigned to IRGC” for his mandatory two-year service in 2003, where “he was assigned to a desk job” and “[h]is duties were primarily human resources.” Id. ¶¶ 41-43. Both claim they “ceased all contact and communication with IRGC” after their service. Id. ¶¶ 37, 44.
Years later, in 2016, Mohsen Keyhanpoor married Shaghayegh Keyhanpoor, a U.S. citizen. Compl. ¶ 38. Not long after, the couple filed a Form I-130, and Mohsen Keyhanpoor appeared for a consular interview at the U.S. Embassy in Ankara, Turkey. Id. ¶ 39. Ultimately, in 2020, the consular officer refused his visa application, citing TRIG ineligibility. Id. Later that year, and upon Mohsen Keyhanpoor's request, the consular officer reconsidered the refusal but declined to issue the visa. Id. ¶ 40.
Alireza Mehrabani, Mohammadsadegh Mehrabani Ardekani's U.S. citizen father, filed a Form I-130 for his son in 2011. Compl. ¶ 46. Mehrabani Ardekani appeared for a consular interview at the U.S. Embassy in Ankara in 2019. Id. In 2020, the consular refused his visa under TRIG. Id. ¶ 47.
In August 2021, the two IRGC Plaintiffs, their two U.S. citizen family members (“U.S. Citizen Plaintiffs”), and Pars Equality Center (“Pars”)-a nonprofit-sued Defendants for violating the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 702, 706(2), the INA, and the Fifth Amendment's Due Process Clause. They allege that Defendants' actions in denying the visas under TRIG were arbitrary and capricious because they were “based on legal error; failed to consider all relevant factors; [were] contrary to the INA; and lacked a rational explanation, particularly in light of the reliance interests at stake.” Compl. ¶ 57. They also say that Defendants violated the IRGC and U.S. Citizen Plaintiffs' Fifth Amendment rights. See id. ¶¶ 59-64. Consular officers' blanket TRIG application to former IRGC members, they argue, has deprived them of statutory and regulatory rights “related to the petition[] for and issuance of visas” and liberty interests in living together in the United States. Id. ¶¶ 61-63.
Defendants moved to dismiss, arguing that Pars lacks standing and that the IRGC Plaintiffs lack standing on their Fifth Amendment claim. See ECF No. 28 at 15-16. They also argue that even those Plaintiffs who have standing fail to state either an APA or Fifth Amendment claim. Id. at 16-17.
When a party moves to dismiss under Federal Rule of Civil Procedure 12(b)(1), the plaintiffs “bear[] the burden of establishing [subject-matter] jurisdiction by a preponderance of the evidence.” Didban v. Pompeo, 435 F.Supp.3d 168, 173 (D.D.C. 2020). A court reviewing such a motion “assumes the truth of all material factual allegations in the complaint, and construes the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged.” Id. (cleaned up).
“In order to survive a motion to dismiss under Rule 12(b)(6), a plaintiff need only plead ‘enough facts to state a claim to relief that is plausible on its face' and to ‘nudge [their] claims across the line from conceivable to plausible.'” Didban, 435 F.Supp.3d at 173 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Defendants raise two challenges to the Court's jurisdiction as to Pars and the IRGC Plaintiffs. First, they argue that Pars lacks organizational standing. ECF No. 28 at 19-21. Second, they contend the IRGC Plaintiffs have not suffered an Article III injury for their Fifth Amendment claim because, as unadmitted foreign citizens, they do not have constitutional rights. Id. at 25-26. Thus, they too lack standing on their constitutional claim. The Court agrees.
Pars Equality Center lacks organizational standing. A little background: “Pars is a community-based social and legal services organization dedicated to helping Iranian American and other Persian-speaking communities fulfill their full potential as informed, self-reliant, and responsible members of American society.” Compl. ¶ 13. Among their other services, Pars “assist[s] members with family-based visa petitions and consular processing.” Id. ¶ 14. They say that “[s]ince the [IRGC TRIG] designation took effect, the Pars legal team has been inundated with inquiries from the community asking questions and expressing concerns.” Id. ¶ 17. And “[r]esponding to these inquiries has diverted significant resources from other areas of Pars' practice and services.” Id. In this action, Pars represents itself as well as Plaintiffs Mehrabani Ardekani and his father.
Organizations must satisfy the same standing requirements as individuals.[3] They too must show “an actual or threatened injury in fact that is fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by a favorable court decision.” ASPCA v. Feld Ent., Inc., 659 F.3d 13, 24 (D.C. Cir. 2011).
To state a cognizable injury, an organization must allege “a concrete and demonstrable injury to its activities,” not just “a mere setback to [its] abstract social interests.” PETA v. U.S. Dep't of Agric., 797 F.3d 1087, 1093 (D.C. Cir. 2015) (cleaned up). “[T]he expenditure of resources on advocacy is not a cognizable Article III injury.” Turlock Irrigation Dist. v. Fed. Energy Regul. Comm'n, 786 F.3d 18, 24 (D.C. Cir. 2015). Rather, an organization must show (1) that the challenged conduct “perceptibly impair[s] the organization's ability to provide services,” Food & Water Watch,...
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