Udugampola v. Jacobs

• Decision Date: 08 July 2011
• Docket Number: Civil Action No. 09–1321 (BAH).
• Citation: 795 F.Supp.2d 96
• Parties: Bianca P. UDUGAMPOLA, et al., Plaintiffsv.Janice JACOBS, Assistant Secretary for Consulate Affairs U.S. Department of State, et al., Defendants.
• Court: U.S. District Court — District of Columbia

795 F.Supp.2d 96

Bianca P. UDUGAMPOLA, et al., Plaintiffs

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

Civil Action No. 09–1321 (BAH).

United States District Court, District of Columbia.

July 8, 2011.

Thomas K. Ragland, Duane Morris, LLP, Washington, DC, for Plaintiffs.Michelle Lo, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, District Judge.

This case arises out of the United States Department of State's decision to deny a Sri Lankan citizen an immigration visa on grounds that he allegedly engaged in terrorist activities. Plaintiff Bianca Udugampola, a United States citizen, filed an I–130 Petition for Alien Relative on behalf of her father Premadasa Udugampola (hereinafter “Mr. Udugampola” or “the applicant”). Although this petition was approved, the United States Consulate subsequently denied Mr. Udugampola's application for an immigration visa after determining that he was ineligible for admittance under Section 212(a)(3)(B) of the Immigration and Nationality Act (hereinafter “INA”) for allegedly participating in terrorism. The applicant,¹ the applicant's daughter, Bianca Udugampola, and the applicant's wife, Somie Udugampola, now bring suit against Janice Jacobs, Assistant Secretary for Consular Affairs at the U.S. Department of State, David Donahue, Deputy Assistant Secretary for Visa Services, and Christopher R. Green, Consul General of the U.S. Embassy in Colombo, Sri Lanka, asserting that the defendants failed to supply a facially legitimate and bona fide reason for denying Mr. Udugampola's visa application and thereby violated the applicant's wife and daughter's Fifth Amendment Due Process rights. The defendants have moved to dismiss the plaintiffs' Complaint for lack of subject matter jurisdiction and for failure to state a claim. For the reasons set forth below, the defendants' motion to dismiss is granted.

I. BACKGROUND

According to the Amended Complaint, Mr. Udugampola is a Sri Lankan citizen and was a Sri Lankan police officer from 1957 to 1992, rising to become Deputy Inspector General of the Police before retiring. Am. Compl. ¶ 31. Mr. Udugampola's wife, Somie Udugampola (hereinafter “the applicant's wife”), has resided in the United States since 1989. Id. ¶ 8

On February 23, 1995, a United States Immigration Judge granted the applicant's wife and her four children asylum in the United States.²Id. Shortly thereafter, on March 22, 1995, the applicant's wife filed a Form I–730 Refugee/Asylee Relative Petition with the Immigration and Natural Service (hereinafter “INS”) on behalf of her husband.³Id. ¶ 14. On May 10, 1995, the INS approved this petition and forwarded it to U.S. Embassy in Colombo, Sri Lanka (hereinafter “the Consulate”). Id. The Consulate allegedly refused to act on the petition, and approximately four years later, returned the petition to the INS. Id.

On September 15, 1999, the INS revoked and denied the applicant's wife's previously approved I–730 petition for her husband, stating that the applicant was ineligible for derivative asylum, under 8 C.F.R. § 208.19, for allegedly having “ordered, incited, assisted, or otherwise participated in the persecution of any persons on account of race, religion, nationality, membership in a particular social group, or political opinion” as a Deputy Inspector General of Police in the Southern Province of Sri Lanka. Id. ¶ 15.

On September 5, 2003, four years after the INS denied the applicant's wife's I–730 petition on behalf of her husband, the applicant's daughter, Bianca Udugampola (hereinafter “the applicant's daughter”), filed a Form I–130 Petition for Alien Relative with the United States Citizenship and Immigration Services (hereinafter “USCIS”) on her father's behalf.⁴ Id. ¶ 1. The USCIS approved the applicant's daughter's I–130 petition on April 23, 2004, and forwarded it to the Consulate for processing and the scheduling of an immigrant visa interview. On December 2, 2004, the applicant appeared for his immigrant visa interview at the Consulate, after which he was instructed to return to the Consulate on January 6, 2005. Id. When he returned on the scheduled date, the applicant was informed that a decision would be made “in due course.” Id.

The plaintiffs allege that over the next four and a half years they repeatedly inquired about the status of the applicant's visa application but received no answer from the Consulate. Id. ¶ 17. On April 27, 2009, plaintiffs' counsel emailed the State Department, and received a response stating that the State Department was going to urge the Consulate to “take another look at the case and take appropriate action.” E-mail from Ragland Thomas to Legalnet (Apr. 27, 2009 13:54 EST).

On July 16, 2009, the applicant's daughter and the applicant filed a Complaint in this Court seeking mandamus and declaratory relief to compel the Consulate to render a decision on the applicant's immigrant visa application. Id. ¶ 18. Two months later, on September 24, 2009, prior to a ruling on the plaintiff's request for a writ of mandamus, the Consulate denied the applicant's immigrant visa application in a one-page decision, which read:

Dear Visa Applicant:

This office regrets to inform you that it is unable to issue a visa to you because you have been found ineligible to receive a visa under the following sections of the Immigration and Nationality Act. Section 212(a)(3)(B). Terrorism.

Sincerely yours,

/signed/ Joel T. Wiegert

Vice Consul

United States of America

Id. ¶ 19; id., Ex. 5.

On November 12, 2009, plaintiffs filed an Amended Complaint, adding as a plaintiff the applicant's wife, and asserting that the Consulate's denial of the applicant's visa application on terrorism-related grounds is “entirely conclusory, has no evidentiary basis, and is legally and factually inapplicable to [the applicant], a state actor who has never engaged in or supported terrorist activities.” Id. ¶ 36. Moreover, because the Consulate “failed to proffer a facially legitimate and bona fide reason for excluding the applicant from the United States, [ ] the visa denial is a violation of the Plaintiffs' rights to constitutionally adequate procedures for visa adjudication under the Due Process Clause.” Id. The plaintiffs request the Court to declare that the defendants' denial of an immigrant visa and a waiver of inadmissibility ⁵ to the applicant violates the Due Process Clause of the Fifth Amendment and the Administrative Procedure Act, and to enjoin the defendants from relying upon 8 U.S.C. § 1182(a)(3)(B) as a basis to exclude the applicant from the United States.

On December 22, 2009, the defendants moved to dismiss the Amended Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), and for failure to state a claim pursuant Federal Rule of Civil Procedure 12(b)(6).⁶ Defs.' Mot. Dismiss, ECF No. 13, at 1. For the following reasons, the defendants' motion is granted and the plaintiffs' claims are dismissed.

II. ANALYSISA. Standards of Review

1. Motion to Dismiss for Lack of Subject Matter Jurisdiction

Pursuant to Federal Rule of Civil Procedure 12(b)(1), the defendants seek to dismiss the Amended Complaint on grounds that the Court lacks subject matter jurisdiction over the plaintiffs' claims. Federal courts are fora of limited jurisdiction, only possessing the power authorized by the Constitution and statutes. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). “It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Id. (internal citations omitted). Therefore, when a defendant brings a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), “the [p]laintiff bears the burden of establishing by a preponderance of the evidence that the Court possesses jurisdiction.” Hollingsworth v. Duff, 444 F.Supp.2d 61, 63 (D.D.C.2006) (citing Shekoyan v. Sibley Int'l Corp., 217 F.Supp.2d 59, 63 (D.D.C.2002)). In evaluating the basis for jurisdiction, the Court “assume[s] the truth of all material factual allegations in the complaint and construe[s] the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged, and upon such facts determine jurisdictional questions.” American Nat. Ins. Co. v. F.D.I.C., 642 F.3d 1137, 1139 (D.C.Cir.2011) (internal citations and quotations omitted). Nevertheless, “the court need not accept factual inferences drawn by plaintiffs if those inferences are not supported by facts alleged in the complaint, nor must the Court accept plaintiffs' legal conclusions.” Speelman v. United States, 461 F.Supp.2d 71, 73 (D.D.C.2006). In deciding a motion to dismiss for lack of subject matter jurisdiction, a court is not limited to the allegations set forth in the complaint, “but may also consider material outside of the pleadings in its effort to determine whether the court has jurisdiction in the case.” Alliance for Democracy v. FEC, 362 F.Supp.2d 138, 142 (D.D.C.2005); see also Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197 (D.C.Cir.1992).

2. Motion to Dismiss for Failure to State a Claim

The defendants also argue that the Court should dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) because the plaintiffs have failed to state a claim. To survive a motion to dismiss under Federal Rule of Civil Procedure 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[ ] [his or her] claims across the line from conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Fed.R.Civ.P. 12(b)(6). Although detailed factual allegations are not...