Udugampola v. Jacobs

• Decision Date: 29 September 2014
• Docket Number: Civil Action No. 13–cv–0460 BAH
• Citation: 70 F.Supp.3d 33
• Parties: Bianca Udugampola, et al., Plaintiffs, v. Janice Jacobs, Assistant Secretary for Consulate Affairs U.S. Department of State, et al., Defendants.
• Court: U.S. District Court — District of Columbia

70 F.Supp.3d 33

Bianca Udugampola, et al., Plaintiffs

v.Janice Jacobs, Assistant Secretary for Consulate Affairs U.S. Department of State, et al., Defendants.

Civil Action No. 13–cv–0460 BAH

United States District Court, District of Columbia.

Signed September 29, 2014

Thomas K. Ragland, Benach Ragland LLP, Washington, DC, for Plaintiffs.

Kenneth A. Adebonojo, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, United States District Judge

For almost twenty years, the family of the plaintiff Premadasa Udugampola (“Mr. Udugampola” or “the applicant”),¹ a Sri Lankan citizen, has been trying unsuccessfully to obtain a visa enabling him to immigrate to the United States. For the second time, the family has filed suit in this Court to obtain the relief denied to them administratively by the United States Department of State. Although the basis for the visa denial at issue in this second suit differs from the first suit, the claims and relevant legal doctrines remain unchanged, necessitating the same outcome of dismissal.

The applicant's daughter, plaintiff Bianca Uduguampola, and the applicant's wife, Plaintiff Somie Udugampola (“Mrs. Udugampola”), allege in this suit against Janice Jacobs, Assistant Secretary for Consular Affairs at the U.S. Department of State, Edward Ramotowski, Deputy Assistant Secretary for Visa Service, and Christopher R. Green, Consul General at the U.S. Embassy in Colombo, Sri Lanka, that the defendants violated the plaintiffs' Fifth Amendment procedural Due Process rights by failing to provide a facially legitimate and bona fide reason for denying Mr. Udugampola's visa application for a third time. The defendants have moved to dismiss the plaintiffs' Amended Complaint and, for the reasons discussed below, this motion is granted. See generally Def.'s Mot. to Dismiss Am. Compl. (“Def.'s Mot.”), ECF No. 11.

I. BACKGROUND

This Court dismissed the plaintiffs' first suit for lack of subject matter jurisdiction, pursuant to the doctrine of consular non-reviewability, and for failure to state a claim under 12(b)(6). See Udugampola v. Jacobs, 795 F.Supp.2d 96, 108 (D.D.C.2011) (“Udugampola I ”). At issue in that suit was the State Department's denial of the applicant's visa application, under Section 212(a)(3)(B) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(a)(3)(B), due to the applicant's alleged participation in terrorism. Id. at 98. A review of the plaintiffs' immigration histories is set forth in that prior opinion, id. at 98–100, and only briefly summarized here.

The applicant worked as a Sri Lankan police officer from 1957 to 1992, rising to the position of Deputy Inspector General of Police before his retirement. Am. Compl. ¶ 11, ECF No. 9. Mr. Udugampola's wife was granted asylum in the United States on February 23, 1995, and became a naturalized U.S. citizen on August 24, 2012. Id. ¶¶ 15, 23. Mr. and Mrs. Udugampola have four children, all of whom are U.S. citizens or lawful permanent residents. Id. ¶ 15.

Shortly after arriving in this country, Mrs. Udugampola filed, on March 22, 1995, a Form I–730 Refugee/Aslyee relative petition on behalf of her husband, Mr. Udugampola. Id. ¶ 16. Four years later, on September 15, 1999, the Immigration and Naturalization Service (“INS”) issued a Notice of Decision denying the I–730 petition, under 8 C.F.R. § 208.19, on the grounds that the applicant was ineligible for derivative asylum for allegedly having “ordered, incited, assisted, or otherwise participated in the persecution of any persons on account of race, nationality, membership, in a particular social group, or political opinion,” when he served as Deputy Inspector General of Police for the Southern Province of Sri Lanka. Id. ¶ 17.²

The applicant's daughter, plaintiff Bianca Udugampola, subsequently filed, on September 5, 2003, a Form I–130 Petition for Alien Relative on behalf of her father, Mr. Udugampola.³ Am. Compl. ¶ 18; see also I–130 Petition for Alien Relative, Complaint Ex. 1, ECF No. 1–7. This Petition was approved by U.S. Citizenship and Immigration Services (“USCIS”) on April 23, 2004, but no action was taken on Mr. Udugampola's immigrant visa application for over five years until September 24, 2009, when the U.S. Embassy in Colombo, Sri Lanka, denied the request based on INA Section 212(a)(3)(B), 8 U.S.C. § 1182(a)(3)(B), for the applicant's alleged participation in terrorism. Am. Compl. ¶¶ 18–20.

This 2009 visa application denial was the subject of the plaintiffs' first suit, which asserted, as in the instant suit, that the defendants, who were U.S. State Department officials, had violated the applicant's wife and daughter's Fifth Amendment Due Process rights for failing to supply a legitimate and bona fide reason for the visa denial. See Udugampola I, 795 F.Supp.2d at 100. Following dismissal of that suit, plaintiff Bianca Udugampola, on behalf of her father, entered into an agreement with the U.S. Department of Justice, permitting Mr. Udugampola to submit a new visa application, along with new supporting documentation and a new interview, which State Department officials would adjudicate “without undue delay,” based on the previously approved Form I–130 petition submitted by the applicant's daughter. Am. Compl. ¶ 22; see also Compl., Ex. 2 (Letter, dated November 8, 2011, to plaintiffs' counsel from Michelle Lo, Assistant U.S. Attorney, U.S. Attorney's Office for the District of Columbia (“USAO Letter”), ¶ 3), ECF No. 1–8. The agreement expressly stated that “the State Department does not make any representation as to the outcome of its adjudication of the new visa application.” See USAO Letter ¶ 5.

On March 14, 2012, Mr. Udugampola appeared for his interview at the U.S. Embassy in Colombo, Sri Lanka, and submitted his third visa application, along with new supporting documentation. Am. Compl. ¶ 22. When no decision was forthcoming within a year, the plaintiffs filed suit in this Court, on April 9, 2013, seeking mandamus and declaratory relief to compel the State Department to issue a decision on Mr. Udugampola's visa. Am. Compl. ¶¶ 23–24. Less than two months later, on July 8, 2013, the Consulate issued a decision on Mr. Udugampola's new application, again denying the applicant's visa application, but based on a different statutory provision, namely, Section 212(a)(3)(E)(iii)(II) of the INA, 8 U.S.C. § 1182(a)(3)(E)(iii)(II), which authorizes exclusion of any alien who has been involved in “extrajudicial killing[s].” Am. Compl. ¶¶ 24, 36. This consular action prompted the plaintiffs to amend their Complaint in this case and modify the relief sought.

In sum, over the last fifteen years, the applicant's three visa applications have been consistently denied but on different grounds: in 1999, the applicant's visa application was denied, pursuant to 8 C.F.R. § 208.13(c)(2)(i)(E), due to his alleged participation in the “persecution of any persons on account of race, nationality, membership, in a particular social group, or political opinion,” id. ¶ 17; in 2009, the applicant's visa application was denied, under 8 U.S.C. § 1182(a)(3)(B), due to his alleged participation in terrorism, id. ¶ 20; and, finally, in 2013, the applicant's visa application was denied, under 8 U.S.C. § 1182(a)(3)(E)(iii)(II), due to his alleged involvement in “extrajudicial killing[s],” id. ¶ 24. The plaintiffs allege that the varying bases for denial are internally inconsistent, noting that “one line of reasoning precludes the application of another,” because allegations of “past persecution or extrajudicial killings ... requires that Mr. Udugampola be categorized as a state actor,” while accusing him of being “engaged in terrorist activity,” amounts to calling the Government of Sri Lanka a “terrorist organization” under 8 U.S.C. § 1182(a)(3)(B)(iv), when, as a “foreign sovereign [ ] ... recognized by the U.S. Government,” it “cannot be [so] characterized.” Am. Compl., ¶ 43, n. 1.

The plaintiffs' Amended Complaint asserts that the defendants violated the plaintiffs' Fifth Amendment Due Process Rights by failing to provide a facially legitimate or bona fide reason for denial of Mr. Udugampola's visa application, under 8 U.S.C. § 1182(a)(3)(E)(iii)(II), Am. Compl. ¶¶ 37–40, and for either not considering or denying a waiver, under 8 U.S.C. § 1182(d)(3), which would permit Mr. Udugampola to enter the country even if deemed otherwise inadmissible. Am. Compl. ¶ 41. The plaintiffs seek a declaratory order that the most recent visa denial in 2013 violates both the Fifth Amendment Due Process Clause and the Administrative Procedure Act, and an injunction barring the defendants from relying on 8 U.S.C. § 1182(a)(3)(E)(iii)(II) as a basis for excluding the applicant from the United States. See Am. Compl., Prayer of Relief. The defendants have moved to dismiss the Amended Complaint and that motion is ripe for decision.

II. LEGAL STANDARDS

A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

“ ‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power authorized by Constitution and statute.’ ” Gunn v. Minton, ––– U.S. ––––, 133 S.Ct. 1059, 1064, 185 L.Ed.2d 72 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ). Indeed, federal courts are “forbidden ... from acting beyond our authority,” NetworkIP, LLC v. FCC, 548 F.3d 116, 120 (D.C.Cir.2008), and, therefore, have “an affirmative obligation ‘to consider whether the constitutional and statutory authority exist for us to hear each dispute.’ ” James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1092 (D.C.Cir.1996) (quoting Herbert v. Nat'l Acad. of Sci's, 974 F.2d 192, 196 (D.C.Cir.1992) ). Absent subject matter jurisdiction over a case, the court must dismiss it. Arbaugh v. Y & H Corp., 546 U.S. 500, 506–07, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) ; Fed. R. Civ. P. 12(h)(3).

When considering a motion to dismiss under Rule 12(b)(1), ...