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Ekaterine Gogilashvili, Jane Doe [Redacted] *Fn1 , and Mamuka v. United States Attorney General Eric H. Holder

June 25, 2012

EKATERINE GOGILASHVILI, JANE DOE [REDACTED] *FN1 , AND MAMUKA RAMISHVILI, PLAINTIFFS,
v.
UNITED STATES ATTORNEY GENERAL ERIC H. HOLDER, JR., HILARY R. CLINTON IN HER OFFICIAL CAPACITY AS SECRETARY OF STATE, UNITED STATES DEPARTMENT OF STATE, PATRICK WINGATE IN HIS OFFICIAL CAPACITY AS CONSULAR CHIEF OF THE EMBASSY OF THE UNITED STATES IN GEORGIA, EMBASSY OF THE UNITED STATES IN GEORGIA, DEFENDANTS.



The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.

MEMORANDUM & ORDER

On March 28, 2011, Ekaterine Gogilashvili, Mamuka Ramishvili, and their minor daughter (together, "plaintiffs") filed this action in the nature of mandamus and for declaratory and injunctive relief to compel the United States Attorney General, Eric H. Holder, Jr., the Secretary of State, Hilary R. Clinton, the United States Department of State, the Consular Chief of the Embassy of the United States in Georgia, Patrick Wingate, and the Embassy of the United States in Georgia ("the Embassy"), (together, "defendants"), to adjudicate plaintiff Ramishvili's motion to reconsider the refusal of his request for a visa, as well as for various forms of alternative relief. (Compl. (Doc. 1); Amended Compl. (Doc. 10).) On October 3, 2011, defendants filed a motion to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim. (Mot. to Dismiss (Doc. 12).)

For the reasons set forth below, this Court grants the motion to dismiss, thereby dismissing all claims against all defendants.

BACKGROUND*fn2

Plaintiffs Gogilashvili and Ramishvili were married on September 16, 1993, in the Republic of Georgia. (Amended Compl. ¶23.) They bore one daughter. (Id.) In 2001, Gogilashvili traveled to the United States while Ramishvili remained in Georgia with their daughter. (Id. at ¶24.) In the fall of 2003, Gogilashvili and Ramishvili divorced. (Abruzzo Decl. at F-1--F-6; Divorce Certificate, Ex. 1 to Kolbe Decl. at D007--12.) Approximately four years later, Gogilashvili was naturalized as a citizen of the United States. (Amended Compl. ¶12.)

On March 1, 2005, Ramishvili married Manana Tinikashvili, a native and citizen of Georgia. (Id. at ¶28.) On a date not specified in the complaint, but allegedly prior to their wedding, Ramishvili and Tinikashvili each individually applied for the "diversity visa" program (also known as the "diversity visa lottery"), which makes available a limited number of immigrant visas each year for citizens of certain countries. (Id. at ¶27.) In June 2005, Tinikashvili was informed that she had been selected for the diversity visa lottery, and Ramishvili and Tinikashvili thereafter applied, as husband and wife, for a visa based on Tinikashvili's selection. (Id. at ¶¶29--30.) After interviewing husband and wife, the consular officer denied their visa applications on the ground that they were inadmissible under INA Section 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i), for having attempted to procure an immigration benefit by fraud or willful misrepresentation of a material fact. (Id. at ¶¶30--32.)

Approximately two years later, in February 2009, Ramishvili and Tinikashvili divorced. (Id. at ¶38.) Gogilashvili, Ramishvili's former wife, had since become a United States citizen, and, on September 27, 2009, Gogilashvili and Ramishvili were remarried. (Id. at ¶39.) About six weeks later, on or about November 12, 2009, Gogilashvili filed a visa petition (Form I-130) on Ramishvili's behalf. (I-130 Application, Ex. 2 to Kolbe Decl. at D013.) On February 23, 2010, the Form I-130 was approved. (Id.) Ramishvili then applied for a visa with the Georgian consulate. After interviewing Ramishvili, the consular official refused the visa on the basis of "misrepresentation," citing again INA Section 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i). (Amended Compl.at ¶43.)

Thereafter, counsel for plaintiffs engaged in a series of email communications with officials at the Embassy, the contents of which are undisputed. On August 25, 2010, counsel for plaintiffs sent the consular officer an email requesting that they be informed of the "nature of the alleged misrepresentation." (Email Corr., Ex. C to Compl. at C-6.) On September 9, 2010, the Consular Section informed counsel for plaintiffs by email that the nature of the misrepresentations underlying the denial had been marriage fraud, saying Ramishvili had "entered into a sham marriage" with Tinikashvili and had "since re-married his first wife, Ms. Gogilashvili, after she obtained the ability to petition." (Id. at C-5.)

In late December 2010, counsel for the plaintiffs requested reconsideration of the consular officer's decision. (Email Corr., Ex. G to Abruzzo Decl. at G-1--2). On February 15, 2011, the Consular Section stated via email to plaintiffs' counsel that it does "not perform review functions." (Email Corr., Ex. C to Compl. at C-3.) On February 16, 2011, plaintiffs' counsel replied that the Embassy had a non-discretionary duty to reconsider their application under 22 C.F.R. § 42.81(e), quoting the regulation. (Id. at C-2.) On February 17, 2011, the Consular Section replied that the Consular Chief had "reviewed the decision in Mr. Ramishvili's case on August 26, 2010" and "conducted a thorough review of Mr. Ramishvili's application from 2005, and confirmed the finding." (Id.) Plaintiffs point out that August 26 is only one day after the initial denial of Ramishvili's application, and before the Embassy received plaintiffs' motion to reconsider and the additional evidence submitted therewith. (Amended Compl. ¶57.) On February 18, 2011 and again on March 2, 2011, plaintiffs' counsel replied via email that the Consular Chief's August 26, 2010 review is not the reconsideration contemplated in 22 C.F.R. § 42.81(e), which allows applicants to "adduce further evidence tending to overcome the ground of ineligibility." (Ex. C to Compl. at C-1.)

Having received no response, plaintiffs filed this action on March 28, 2011. Thereafter, on April 27, 2011, the Consular Chief explained via email to plaintiffs' counsel that his February 17, 2011 review of the case had included a review of all of the material that had been submitted with counsel's request for reconsideration, but that he had found it insufficient to overcome the consular officer's refusal. (Email Corr., Ex. 3 to Kolbe Decl. at D017.) Plaintiffs do not dispute receipt of this communication. (See Amended Compl. at ¶63.) Consular Chief Patrick Wingate also now affirms the content of that communication: that on February 17, 2011 he "reviewed all of the evidence submitted with Mr. Ramishvili's request for reconsideration and determined that it did not overcome the consular officer's determination that Mr. Ramishvili was ineligible."

(Declaration of Consular Section Chief Wingate ("Wingate Decl."), Ex. 3 to Kolbe Decl. at D015 ¶3.)*fn3

Plaintiffs filed an amended complaint on July 13, 2011, pursuant to the Immigration and Nationality Act of 1952, as amended ("INA"), 8 U.S.C. §§ 1101 et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551 et seq. Plaintiffs seek mandamus with respect to 22 C.F.R. § 42.81(e), which they allege creates a mandatory duty for consular officials to reconsider refusals. Plaintiffs further allege a violation of 5 U.S.C. § 555, requiring agencies to "conclude a matter presented to [them]," which failure to so do, plaintiffs allege, in turn violates their First and Fifth Amendment rights. (Amended Compl.) Alternatively, plaintiffs challenge the visa denial as lacking legitimacy, and seek to compel defendants to provide reasons, reopen the case, allow plaintiff to submit additional evidence, and re-adjudicate within 30 days. (Id.) On October 3, 2011, defendants filed a fully briefed motion to dismiss. (Mot. to Dismiss (Doc. 12).)

DISCUSSION

I. Lack of ...


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