Zigzag, LLC v. Kerry

Decision Date10 March 2015
Docket NumberCivil Action No. 14-14118-DJC
PartiesZIGZAG, LLC and MARINA KOSTOCHKA, Plaintiffs, v. JOHN KERRY, U.S. Secretary of State, and JULIE KAVANAGH, Consul General of the United States, Moscow, Russia, Defendants.
CourtU.S. District Court — District of Massachusetts


I. Introduction

Plaintiffs ZigZag, LLC ("ZigZag"), a Massachusetts company, and Marina Kostochka ("Kostochka"), an employee of a Russian-based affiliate of ZigZag (collectively, "Plaintiffs"), instituted this action seeking a writ of mandamus against Defendants John Kerry and Julie Kavanagh (collectively, "Defendants") pursuant to 28 U.S.C. § 1361 and the Administrative Procedure Act ("APA"), 5 U.S.C. § 706 (2)(A). D. 1. Plaintiffs seek to compel Defendants to conduct a visa interview for Kostochka at the U.S. Embassy in Moscow "in accordance with all legal requirements." Id. at 9. Plaintiffs have also moved for a preliminary injunction to enjoin Defendants from returning Kostochka's visa application to U.S. Citizenship and Immigration Services ("USCIS") pending the resolution of this action. D. 2. Defendants have moved to dismiss the complaint, arguing that under the doctrine of consular nonreviewability, the Court lacks the jurisdiction to review the decision of the consular officer in Moscow denyingKostochka's visa. D. 10. For the reasons stated below, the Court DENIES Plaintiffs' motion for a preliminary injunction, D. 2, and ALLOWS Defendants' motion to dismiss, D. 10.

II. Standard of Review
A. Preliminary Injunction

To obtain a preliminary injunction, the party seeking the injunction must demonstrate: "1) a substantial likelihood of success on the merits, 2) a significant risk of irreparable harm if the injunction is withheld, 3) a favorable balance of hardships, and 4) a fit (or lack of friction) between the injunction and the public interest." Nieves-Márquez v. Puerto Rico, 353 F.3d 108, 120 (1st Cir. 2003) (citing McGuire v. Reilly, 260 F.3d 36, 42 (1st Cir. 2001)). A preliminary injunction is an "extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)); see also Voice of the Arab World Inc. v. MDTV Med. News Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011) (labeling a preliminary injunction as an "extraordinary and drastic remedy") (quoting Munaf v. Geren, 553 U.S. 674, 689-90 (2008)).

B. Motion to Dismiss

In considering a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6), the Court will dismiss a complaint or a claim that fails to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). To state a plausible claim, a complaint need not contain detailed factual allegations, but it must recite facts sufficient to at least "raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 555. "In determining whether a complaint crosses theplausibility threshold, 'the reviewing court [must] draw on its judicial experience and common sense.'" García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (alteration in original). "This context-specific inquiry does not demand 'a high degree of factual specificity.' Even so, the complaint 'must contain more than a rote recital of the elements of a cause of action.'" García-Catalán, 734 F.3d at 103 (internal citations omitted).

III. Background
A. Factual Background

Unless otherwise noted, the Court summarizes the following facts as alleged in the complaint, D 1.

On May 8, 2014, ZigZag filed a non-immigrant worker visa petition (Form I-129) with USCIS to allow Kostochka to transfer from the Russian-based affiliate of ZigZag to a U.S. office. Id. ¶ 7. On October 2, 2014, USCIS approved Kostochka's L-1A visa petition classifying Plaintiff Kostochka as an intracompany transferee. Id. ¶¶ 1, 7. The approved petition entitled Kostochka to apply for an L visa under section 101(a)(15)(L) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101(a)(15)(L). D. 9 at 1. Kostochka subsequently filed an application for an L-1A visa with the U.S. Embassy's Consular Section in Moscow, Russia. D. 1 ¶ 8.

On October 29, 2014, Kostochka appeared for her visa interview with a copy of the approved I-129 petition, including the receipt number as per the instructions posted on the Consular Section's website. Id. ¶ 9. According to the Foreign Affairs Manual instructions to consular officers in adjudicating L visa applications, applicants are not required to provide their approved I-129 petition and "[a]ll petition approvals must be verified either through the PetitionInformation Management Service (PIMS) or through the Person Centric Query Service (PCQS), in the CCD under the Cross Applications tab." Id. ¶ 11 (quoting 9 F.A.M. 41.54 N3.2). Once the petition approval has been verified, consular officers are instructed to "consider this as prima facie evidence that the requirements for L classification, which are examined in the petition process, have been met." Id. The consular officers "may not question the approval of L petitions without specific evidence, unavailable to DHS at the time of petition approval, that the beneficiary may not be entitled to status." Id.

During the interview, however, the consular officer allegedly stated that he did not have access to copies of Kostochka's L-1A petition and repeatedly asked her for copies of the documents that she had submitted to USCIS in support of her L-1A visa petition. Id. ¶ 10. The consular officer allegedly then "went on an extensive fishing expedition concerning Kostochka's prior immigration history and the birth of her child in the United States." Id. ¶ 22. The consular officer also challenged the USCIS approval of Kostochka's change of status while in the United States from B-2 (visitor) to F-1 (student). Id. ¶ 13. The consular officer informed Kostochka that "he could not understand how USCIS could have approved [her] L-1A visa petition" even though the officer admitted that he did not have access to the petition file. Id. ¶ 14.

At the conclusion of the interview, the officer concluded that USCIS's approval had been made in error and the officer refused to issue the visa to Kostochka. Id. ¶ 17. The officer provided Kostochka with a visa refusal letter, which stated that the case was being "sent back to DHS [Department of Homeland Security, i.e., USCIS] for reconsideration/revocation of petition."1 Id. (quoting D. 1-8, Visa Refusal Letter). Although the officer did not provide Kostochka further reasons for the denial, later that day the Vice Consul of the AmericanEmbassy in Moscow, Gavin Piercy, informed Kostochka's counsel that "[a]fter considerable review, the Embassy has found compelling reason to send Mrs. Kostochka's nonimmigrant visa petition to USCIS with a memorandum for revocation." Id. ¶ 18 (quoting D. 1-9, Embassy Response Letter) and D. 1-9 at 2. The Vice Consul further stated that Kostochka's application would remain open pending internal deliberations and that as a final decision had not yet been reached, the Embassy was not required to provide detailed information before the case had been decided. See D. 9 at 3 (quoting D. 1-9).

B. Procedural History

Plaintiffs commenced this action on November 8, 2014 seeking a writ of mandamus2 pursuant to 28 U.S.C. § 1361 and the Administrative Procedure Act ("APA"), 5 U.S.C. § 706 (2)(A). D. 1. Plaintiffs subsequently moved for a preliminary injunction to enjoin Defendants from returning Kostochka's visa application to USCIS pending the resolution of this action. D. 2. Defendants opposed Plaintiffs' motion for a preliminary injunction, D. 9, and simultaneously moved to dismiss the action arguing that the Court lacks the jurisdiction to review the decision of the consular officer in Moscow denying Kostochka's visa. D. 1. On January 8, 2015, the Court heard argument on the pending motions and took the matters under advisement. D. 19.

IV. Discussion

The INA, 8 U.S.C. § 1101 et seq., contains "the terms and conditions under which aliens are permitted to enter the United States - either as visitors or immigrants" and apart from certain limited exceptions (not at issue here0, "an alien must apply for and obtain an immigrant ornonimmigrant visa prior to entering the United States." Adams v. Baker, 909 F.2d 643, 645 (1st Cir. 1990) (citing 8 U.S.C. §§ 1181(a) and 1182(a)(26)). Nonimmigrant visas, like the one sought by Kostochka, may be granted for a variety of reasons; however, it is the alien "who bears the burden of establishing 'that [she] is eligible to receive such a visa . . . or is not subject to exclusion under any provision of [the Act] . . .'" Id. (quoting 8 U.S.C. § 1361). And "[i]n no area is the scope of judicial inquiry more limited than the area of immigration legislation." Pishdadiyan v. Clinton, No. 11-CV-10723-JLT, 2012 WL 601907, at *7 (D. Mass. Feb. 7, 2012) (citations omitted).

A. Under the Doctrine of Consular Nonreviewability, the Court May Not Review the Denial of Kostochka's Visa Application

Under the doctrine of consular nonreviewability, courts are generally not authorized to review the decisions of consular officers. Adams, 909 F.2d at 649 (explaining that "in the absence of statutory authorization or mandate from Congress, factual determinations made by consular officers in the visa issuance process are not subject to review by the Secretary of State, 8 U.S.C. § 1104(a)(1), and are similarly not reviewable by courts"); Saavedra Bruno v. Albright, 197 F.3d 1153, 1159-60, 1162-63 (D.C. Cir. 1999) (noting that "[t]he doctrine [of consular nonreviewability] holds that a consular official's...

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