Salem v. Holder

• Decision Date: 01 June 2012
• Docket Number: 10-CV-6588 CJS
• Parties: ABDULKARIM N. SALEM and ENITSAR A. YEHIA, aka Entisar (Entesar) Abdulkarim Nasher Salem, Plaintiffs, v. ERIC HOLDER, Attorney General of the United States of America, et al., Defendants.
• Court: U.S. District Court — Western District of New York

ABDULKARIM N. SALEM and ENITSAR A. YEHIA,aka Entisar (Entesar) Abdulkarim Nasher Salem, Plaintiffs,

v.ERIC HOLDER, Attorney General of the United States of America, et al., Defendants.

10-CV-6588 CJS

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

Date: June 1, 2012

DECISION AND ORDER

INTRODUCTION

Plaintiffs seek an order of mandamus to compel the U.S. Embassy in Sanaa, Yemen, "to make a decision" on a visa application originally filed in 2006. This action is duplicative of an action that was dismissed by the Honorable David G. Larimer, United States District Judge, for lack of subject-matter jurisdiction. Now before the Court is Defendants' motion to dismiss. (Docket No. [#2]). The application is granted.

BACKGROUND¹

This action is brought by a father who is still waiting for the U.S. Embassy in Sanaa, Yemen, to make a decision on a visa application first filed on behalf of his daughter almost five years ago, in August 2007. Abdulkarim Salem ("Mr. Salem") is a U.S. citizen who immigrated from Yemen. Mr. Salem presently resides in Rochester, New York. Mr. Salem's daughter Enitsar ("Enitsar") is a citizen and resident of Yemen. When the visa application was first filed, Enitsar was approximately fifteen years old, and residing in Yemen with her grandmother, her only immediate relative. Presently, Enitsar is nineteen and still in Yemen, though her grandmother is now deceased.

On April 11, 2006, Mr. Salem filed a Petition for Alien Relative, Form I-130, on behalf of Enitsar. The I-130 form allows U.S. citizens or lawful resident aliens to establish their relationship to alien relatives who want to immigrate to the U.S. On or about August 26, 2007, Mr. Salem filed a DS-230 visa application for Enitsar with the U.S. Embassy in Sanaa. At that time, Mr. Salem was married to Enitsar's mother, and believed that Enitsar was his step-daughter. Accordingly, the paperwork indicated that Mr. Salem was seeking a visa on behalf of his step daughter. According to Mr. Salem, subsequent DNA testing conducted in connection with the visa application process revealed that Enitsar is actually his biological daughter. The fact that Enitsar was initially incorrectly identified on immigration forms as Mr. Salem's step-daughter rather than his daughter, has apparently resulted in some amount of delay in the visa application process.

On January 15, 2008, U.S. Immigration "refused" Enitsar's visa application, "under section 221(g) of the Immigration and Naturalization Act (INA), 8 U.S.C. § 1201(g)² , pending results from DNA testing and a new Form I-864, affidavit of support." Affidavit [#6-1] of Daniel W. Wright, Vice Consul in the Visa Section at the U.S. Embassy, Sanaa, Yemen. Shortly thereafter, on February 10, 2008, Mr. Salem submitted the new DNA testing information and Form I-864. This supplemental submission is considered a request for reconsideration. See, 22 C.F.R. § 42.81(e). Almost a year later, U.S. Immigration had given no further indication as to whether it would issue a visa to Enitsar.

On January 20, 2009, Mr. Salem filed an action in this Court, seeking a writ of mandamus to compel the U.S. Embassy in Sanaa to make a decision on the visa application. See, Salem et al. v. Mukasey et al., 09-mc-6002 DGL. The action was assigned to Judge Larimer. On March 20, 2009, the Government filed a motion [#3] for an extension of time to answer. As part of that application, the Government submitted thepreviously-cited affidavit of Daniel Wright, Vice Consul in the Visa Section at the U.S. Embassy in Sanaa. Wright indicated that in February 2009, he reviewed the materials that Mr. Salem had submitted a year earlier. Wright stated that the Form I-864 had been approved. Wright also indicated that "[a] request was made to verify the DNA results with the testing lab. We expect to hear back from the lab within a week." Wright Aff. [#6-1] at ¶ 4. According to Wright, therefore, the Government expected to have the DNA results in March 2009. However, to the present date, the Government has neither granted or denied the visa application, or said anything further to Mr. Salem about the DNA testing.

On April 20, 2009, the Government filed a motion before Judge Larimer, seeking to dismiss the mandamus action for lack of subject matter jurisdiction. Specifically, the Government argued that, "[p]ursuant to the well-settled doctrine of consular nonreviewability, the Court lacks jurisdiction to review the consular officers' decision to deny the visa." Def. Memo of Law at p. 2, 09-mc-6002 DGL. In this regard, the Government argued that the visa application had been denied in January 2008, and that the Court therefore could not review such dismissal, pursuant to the "consular nonreviewability" doctrine, which "precludes federal courts from exercising jurisdiction to consider an alien's challenge to a denial of a visa application." American Academy of Religion v. Napolitano, 573 F.3d 115, 121 (2d Cir. 2009).³

In addition to arguing that the action was barred by the doctrine of consular nonreviewability to the extent it sought a review of the denial of the visa application, Defendants contended before Judge Larimer that they could not be ordered to issue a decision as to Mr. Salem's request for reconsideration. On this point, Defendants argued that they had "discretion" whether to reconsider the application under 22 C.F.R. § 42.81.See, Def. Memo of Law [#7] at pp. 4 & 19, 09-mc-6002.⁴ As discussed further below, it appears that Defendants' argument with respect to this issue was a misstatement of the law. See, Rivas v. Napolitano, 2012 WL 1416008 at *2; accord, Davila v. Holder, No. C-09-5058 JCS, 2010 WL 1264670 at *6 (N.D.Cal. Mar. 30, 2010) ("The language of the regulation at issue here is mandatory: 'If the visa is refused, and the applicant within one year from the date of refusal adduces further evidence tending to overcome the ground of ineligibility on which the refusal was based, the case shall be reconsidered. In such circumstances, an additional application fee shall not be required.' 22 C.F.R. § 42.81(e) (emphasis added). Respondents have not argued, nor has the Court found any authority suggesting that this language is anything but mandatory."). Significantly, although Defendants cited to 22 C.F.R. § 42.81 generally, and to subsections (a) and (b) specifically, they never referred Judge Larimer's attention to subsection (e), which is the key provision, since it indicates that when a request for reconsideration is made within one year, as Plaintiffs' was, "the case shall be reconsidered." (emphasis added). Accordingly, 22 C.F.R. § 42.81(e) establishes that reconsideration is not discretionary.⁵

On February 3, 2010, Judge Larimer granted the defendants' motion to dismiss for lack of subject-matter jurisdiction. On February 8, 2010, that action was closed. Plaintiff's did not appeal or otherwise seek relief from Judge Larimer's judgment.

Instead, on October 18, 2010, Plaintiffs commenced this action, which is essentially identical to the prior action. Significantly, when completing the cover sheet used for filinga new action with the Court, Plaintiffs were asked to list "related case(s) if any," but they left that section blank. Consequently, this action was assigned to the undersigned. On December 28, 2010, Defendants filed the subject motion to dismiss, for lack of subject-matter jurisdiction, and on the grounds of res judicata.

DISCUSSION

Motion to dismiss for lack of subject-matter jurisdiction

Defendants' motion is brought pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure ("FRCP"). With regard to such an application, it is well settled that,

[a] case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it. In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court ... may refer to evidence outside the pleadings. A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.

Makarova v. U.S., 201 F.3d 110, 113 (2d Cir.2000) (citations omitted).

Defendants again argue that the Court lacks subject-matter jurisdiction based on the doctrine of consular nonreviewability. The Court disagrees. Mr. Salem is not seeking review of the denial of a visa application. Instead, he is requesting an order directing the Government to take action on the materials that it admittedly has had since February 2008, i.e., to either grant or deny the application. Courts have held that such actions are not barred by the "consular nonreviewability" doctrine. See, e.g., Rivas v. Napolitano, — F.3d —, 2012 WL 1416008 at *1 (9th Cir. Apr. 25, 2012) (Federal courts are generally without power to review the actions of consular officials. However, . . . a court has jurisdiction to review a consular official's actions when the suit challenges the authority of the consul to take or fail to take an action as opposed to a decision within the consul's discretion.") (emphasis added, citations and internal quotation marks omitted).

To the extent that the Government maintains that the Consulate's "refusal" of theinitial papers in January 2008 was a final "decision" which cannot be appealed, the fact remains that the application was being reconsidered as late as March 2009, and the Government is under a legal duty to complete such reconsideration within a reasonable time.⁶ See, Rivas v. Napolitano, 2012 WL 1416008 at *2 ("Because 22 C.F.R. § 42.81(e) by its plain terms imposes a nondiscretionary, ministerial duty to reconsider the denial of a visa application when the applicant adduces further evidence tending to overcome the ground of ineligibility, the district court has subject matter jurisdiction under the Mandamus Act where the government fails to comply with the regulation."); see also, Ruston v. U.S. Dept. of State, 29...