Macias v. Kerry
| Decision Date | 18 July 2013 |
| Docket Number | CASE NO. 13cv0201-GPC-JMA |
| Parties | MAREL MACIAS and JOEL BELTRAN ANGULO, Plaintiffs, v. JOHN F. KERRY, Secretary of Department of State; JANICE JACOBS, Assistant Secretary of State for Consular Affairs; DAVID DONAHUE, Deputy Assistant Secretary of State for Visa Services; IAN BROWNLEE, Consul General of the U.S. Consulate Ciudad Juarez, Defendants. |
| Court | U.S. District Court — Southern District of California |
ORDER DENYING DEFENDANTS'
MOTION TO DISMISS
Plaintiffs Marel Macias and Joel Beltran Angulo ("Plaintiffs") filed the instant action against various governmental defendants ("Defendants") seeking review of the government's determination that Joel Beltran Angulo is inadmissible into the United States under section Section 212(a)(3)(B) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(a)(2)(C). Defendants seek dismissal pursuant to Fed. R. Civ. P. 12(b)(1), lack of subject matter jurisdiction, and 12(b)(6), failure to state a claim. For the reasons below, the Court hereby DENIES Defendants' motion to dismiss.
Plaintiff Marel Macias ("Macias"), a United States citizen residing in California, is married to Plaintiff Joel Beltran Angulo ("Angulo"), a Mexican citizen residing in Mexico. On January 13, 2011, Macias filed a Petition to Immigrate Alien Relative (also known as Form I-130) to immigrate her husband Angulo to the United States. The petition was approved sometime in October 2011. On September 4, 2012, Angulo attended his immigrant visa interview at the U.S. Consulate in Ciudad Juarez, Mexico. In October 2012, the consular officer denied Plaintiff Angulo's immigrant visa application finding he was inadmissible under 8 U.S.C. § 1182(a)(2)(C).
Plaintiffs allege the consular officer did not provide any reason or evidence for his reason to believe Plaintiff Angulo is or has been a drug trafficker as required under the statute. Plaintiffs further allege Angulo has no previous conviction and/or arrests for drug trafficking. Plaintiffs state that although Angulos' E-2 visa and border crossing card was cancelled in December 2010 "due to violation of the terms of admission," they were cancelled without prejudice. Plaintiffs assert the government did not provide information to show Angulo was involved with drug trafficking, and there is no reasonable basis to believe Angulo is or has been a drug trafficker.
Plaintiffs allege the consular officer acted in bad faith because he did not provide a bona fide reason to deny Angulos' immigrant visa application. Plaintiffs further allege the government's denial of Angulo's visa application has violated Macias' constitutional right to her marriage and choices regarding her family life. Plaintiffs allege the government's actions have caused them irreparable harm, and request the Court order the U.S. Consulate approve Angulo's immigrant visa application.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). To survive a motion to dismiss, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007). A claim has facial plausibility, "when the plaintiff pleads factual content that 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). While a plaintiff need not give "detailed factual allegations," a plaintiff must plead sufficient facts that, if true, "raise a right to relief above the speculative level." Twombly, 550 at 545. "[F]or a complaint to survive a motion to dismiss, the non-conclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir.2009).
In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe all inferences from them in the light most favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). Legal conclusions, however, need not be taken as true merely because they are cast in the form of factual allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003). In practice, "a complaint . . . must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Twombly, 550 U.S. at 562.
Defendants move to dismiss for lack of subject matter jurisdiction, asserting the consular doctrine of nonreviewability restricts judicial review, and failure to state a claim with sufficient particularity. (Dkt. No. 6, "Def. Mtn.") Plaintiffs counter, arguing Ninth Circuit precedent authorizes this Court to review Plaintiffs'claim and Plaintiffs have sufficiently alleged that the consular officer did not have a facially legitimate or bona fide reason to deny Angulo's visa. (Dkt. No. 7, "Pl. Response.")
The Court first addresses whether the doctrine of consular nonreviewability prevents judicial review of Plaintiffs' claim. The doctrine of consular nonreviewability begins with the premise that an alien has "no constitutional right of entry" to the United States. Kleindienst v. Mandel, 408 U.S. 753, 762 (1972). The Supreme Court "without exception has sustained Congress' 'plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.' " Id. at 766 (quoting Boutilier v. INS, 387 U.S. 118, 123 (1967)). Accordingly, "[f]ederal courts are generally without power to review the actions of consular officials." Rivas v. Napolitano, 677 F.3d 849, 850 (9th Cir. 2012) (citing Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir. 1986)). However, a limited exception exists when the denial of a visa implicates the constitutional rights of a U.S. citizen. Under these circumstances, courts exercise "a highly constrained review solely to determine whether the consular official acted on the basis of a facially legitimate and bona fide reason." Bustamante v. Mukasey, 531 F.3d 1059, 1062 (9th Cir. 2008); See also Mandel, 408 U.S. at 770 (). Upon offering a facially legitimate and bona fide reason for the denial, "courts have no authority or jurisdiction to go behind the facial reason to determine whether it is accurate." Chiang v. Skeirik, 582 F.3d 238, 243 (1st Cir. 2009).
The Ninth Circuit recently reaffirmed that "a citizen has a protected liberty interest in marriage that entitles the citizen to review of the denial of a spouse'svisa." Din v. Kerry, 10-16772, 2013 WL 2249289 (9th Cir. May 23, 2013)(citing Bustamante, 531 F.3d at 1062). Here, Plaintiff Macias, a U.S. citizen, alleges the denial of her husband's visa violates her constitutional right to marriage and choices regarding her family life. (Complaint at ¶ 12.)
The Court concludes Plaintiff Macias has sufficiently alleged the visa denial implicated her constitutional rights. See Bustamante, 531 F.3d 1059, 1062 () (citing Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-340 (1974); Israel v. INS, 785 F.2d 738, 742 n. 8 (9th Cir. 1986)). In so finding, the Court rejects Defendants' attempt to dissuade this Court from applying Bustamante's holding that a citizen has a protected liberty interest in marriage.2 Accordingly, Plaintiff Macias may be afforded limited judicial review of her husband's visa denial.3 The Court next turns to whether Plaintiffs have sufficiently alleged the government failed to offer a facially legitimate and bona fide reason for denying Angulo's visa.
For the reasons stated below, the Court concludes Plaintiffs have sufficiently alleged the government has not provided a facially legitimate reason for the visa denial.
In the complaint, Plaintiffs allege the consular officer denied Angulo's visa, finding he was inadmissible under 8 U.S.C. § 1182(a)(2)(c). (Id. at ¶ 7.) An alien under this statute is inadmissible when:
The consular officer did not offer any reason or explanation for his reason to believe Angulo was an illicit trafficker. (Complaint at ¶ 10.)
Although neither party cites Din v. Kerry, the recent Ninth Circuit decision is particularly instructive in determining whether the government has offered a facially legitimate reason. In Din, the Ninth Circuit reversed the district court's order granting the government's motion to dismiss on the grounds that the doctrine of nonreviewability barred adjudication of Plaintiff's claims. Din, 2013 WL 2249289 at *2. The facts of this case are worth disclosing in part. In 2006, Plaintiff Din filed a visa petition on behalf of her husband, Berashk,...
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