United States District Court, S.D. New York
June 1, 2015
ALI AL NAHAM, et al., Plaintiffs,
UNITED STATES DEPARTMENT OF STATE, et al., Defendants.
OPINION AND ORDER
J. PAUL OETKEN, District Judge.
Plaintiffs Ali Al Naham, his wife, and their three children, bring this action against the United States Department of State, Secretary of State John Kerry, the Deputy Assistant Secretary for Visa Services, and the Director of the National Visa Center ("NVC") (collectively, "Defendants") in connection with Defendants' failure to adjudicate visa applications filed by the wife and children, who reside in Yemen. Plaintiffs seek declaratory relief and an order compelling Defendants to schedule interviews and to adjudicate the pending visa applications. Now before the Court are Defendants' motions to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons that follow, the 12(b)(1) motion is granted and the 12(b)(6) motion is denied as moot.
A. The Petition's Allegations
Plaintiff Ali Al Naham ("Al Naham") is a lawful permanent resident ("LPR") of the United States. His wife and three children are citizens and residents of Yemen. (Dkt. No. 1 ("Petition"), ¶¶ 7-10.) In an effort to bring his wife and children to the United States, Al Naham filed several Forms I-130, known as "Petition[s] for Alien Relative, " on their behalf. ( Id. ¶ 15.) The United States Citizenship and Immigration Services ("USCIS") approved the petitions and forwarded them to the NVC in 2007. ( Id. ) Plaintiffs then prepared their visa applications and sent them to the NVC in anticipation of interviews at the United States embassy in Sana'a, Yemen. ( Id. ¶ 16.)
Those interviews have not yet taken place. In 2010, the NVC twice directed Plaintiffs to refile their visa applications. ( Id. ¶¶ 18-19.) Plaintiffs did so, but heard nothing further. ( Id. ¶ 21.) Several years later, the NVC again directed Plaintiffs to file their visa applications online. ( Id. ¶ 22.) Plaintiffs did so on January 21, 2014. ( Id. ¶ 23.) In subsequent correspondence, the NVC informed Plaintiffs that "the cases were complete and waiting to be scheduled." ( Id. ¶¶ 26, 31, 32, 34.) No interviews have been scheduled since.
Defendants' conduct, the Petition alleges, has caused Plaintiffs "severe emotional and financial hardship" and "unlawfully infringe[s] upon" Al Naham's constitutional interests. ( Id. ¶¶ 38-44.) Plaintiffs accordingly seek declaratory relief and an order, pursuant to the mandamus statute, 28 U.S.C. § 1361, and the Administrative Procedure Act, 5 U.S.C. § 701 et seq. ("APA"), compelling Defendants to schedule their interviews and adjudicate their visa applications within thirty days.
B. The Situation in Yemen
Defendants argue that the United States embassy in Sana'a has been unable schedule interviews or adjudicate applications because of the precarious security situation there. (Dkt. No. 8 ("Def. Memo"), at 1.) The U.S. embassy compound was attacked by a mob on September 13, 2012. (Dkt. No. 9, Ex. A.) About one month later, a Yemeni citizen employed by the embassy was killed. ( Id. Ex. B.) On August 6, 2013, citing a "high security threat level in Yemen due to terrorist activities and civil unrest, " the State Department ordered the departure of nonemergency U.S. government personnel from Yemen and issued an advisory to U.S. citizens living there to "depart immediately." ( Id. Ex. C.) The embassy in Sana'a was, for some time, closed for all but urgent cases. ( Id. Ex. D.)
The State Department lifted the ordered departure for non-emergency personnel in January 2014, but the embassy was able to provide routine consular services on only a limited basis. ( Id. Ex. E.) Beginning in May 2014, the embassy remained closed for five weeks because of security threats, and again provided only limited routine consular services after the State Department ordered a reduction of government personnel in Yemen in September 2014. ( Id. Ex. E.) Terrorist attacks occurred frequently in Yemen for several months thereafter ( id. Exs. G-K), and on February 8, 2015, the embassy suspended all routine consular services and provided emergency services only ( id. Ex. M). The embassy advised that, because of closures and staffing interruptions, it was "experiencing extremely long wait times for Immigrant Visa interviews." ( Id. at 3.) Three days later, the State Department suspended all services, routine and emergency, and relocated embassy staff out of the country. ( Id. Ex. N.) At the time Defendants filed their motions to dismiss on February 23, 2015, the embassy in Sana'a remained closed, but the following day the State Department announced that the U.S. embassy in Cairo would "handle Immigrant Visa cases emanating out of Yemen, as well as process visas for Yemeni citizens." (Dkt. No. 19, Ex. D.)
Plaintiffs argue that they have been awaiting adjudication of their visa applications since "well before" any of the security issues cited by Defendants arose, and that Defendants have refused to consider reasonable alternatives suggested by Plaintiffs, including conducting visa interviews in other countries. ( See Dkt. No. 13, at 1-2.)
II. Legal Standard
Defendants move to dismiss this action for lack of subject matter jurisdiction, pursuant to Federal Rule 12(b)(1). "Generally, a claim may be properly dismissed for lack of subject matter jurisdiction where a district court lacks constitutional or statutory power to adjudicate it." Kingsley v. BMW of N. Am. LLC, 12-CV-234, 12-CV-350 (JPO), 2012 WL 1605054, at *2 (S.D.N.Y. May 8, 2012) (Oetken, J.). "In resolving a motion to dismiss under Rule 12(b)(1), the district court must take all uncontroverted facts in the complaint (or petition) as true, and draw all reasonable inferences in favor of the party asserting jurisdiction." Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014). At the same time, the court has "the power and obligation" to decide disputed jurisdictional facts by reference to materials outside the pleadings, including affidavits. APWU v. Potter, 343 F.3d 619, 627 (2d Cir. 2003) (internal quotation marks omitted). In that case, the party asserting subject matter jurisdiction bears the burden of proving it by a preponderance of the evidence. Tandon, 752 F.3d at 243 (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)).
Defendants contend that the doctrine of consular nonreviewability bars the Court from adjudicating Plaintiffs' claims. The Court agrees.
The doctrine of consular nonreviewability is based on "the principle that a consular officer's decision to deny a visa is immune from judicial review." Am. Acad. of Religion v. Napolitano, 573 F.3d 115, 123 (2d Cir. 2009). The doctrine has its basis in the plenary power doctrine: "The power of Congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention." Wan Shih Hsieh v. Kiley, 569 F.2d 1179, 1181 (2d Cir. 1978) (quoting Kleindienst v. Mandel, 408 U.S. 753, 766 (1972)); see also Castillo v. Rice, 581 F.Supp.2d 468, 475 (S.D.N.Y. 2008). The Second Circuit has recognized an exception to consular nonreviewability where certain kinds of constitutional claims are at issue, Am. Acad. of Religion, 573 F.3d at 125 ("[W]here a plaintiff, with standing to do so, asserts a First Amendment claim to have a visa applicant present views in this country, we should [not apply consular nonreviewability] to a consular officer's denial of a visa."), but the doctrine is otherwise treated as nearly absolute.
Plaintiffs do not meaningfully dispute the above. They contend, however, that the doctrine is limited to cases in which a plaintiff challenges an official's discretionary decision to approve or deny a visa application. It has no applicability, they argue, where a plaintiff seeks to compel an official to simply adjudicate a visa application.
Other circuits have recognized that distinction as having some force. See, e.g., Patel v. Reno, 134 F.3d 929, 931-32 (9th Cir. 1997) ("Normally a consular official's discretionary decision to grant or deny a visa petition is not subject to judicial review. However, when the suit challenges the authority of the consul to take or fail to take an action as opposed to a decision taken within the consul's discretion, jurisdiction exists." (citations omitted)). But, whatever this distinction's merits, it is not one that has a basis in Second Circuit law. See Hsieh, 569 F.2d at 1181 ("[N]o jurisdictional basis exists for review of the action of the American Consul... suspending or denying the issuance of immigration visas.... It is settled that the judiciary will not interfere with the visa-issuing process." (emphasis added)); Li v. Chertoff, 06-CV-13679 (LAP), 2007 WL 541974, at *1 (S.D.N.Y. Feb. 16, 2007) (rejecting the plaintiff's attempt "to circumvent... long-standing precedent by contending that [consular nonreviewability] does not apply to a request that a visa be adjudicated (as opposed to granted) within a reasonable period of time"); Saleh v. Holder, ___ F.Supp. 3d ___, 2014 WL 7751230, at *3 (E.D.N.Y. Nov. 4, 2014) (same); Foad v. Holder, 13-CV-6049, 2015 WL 1540522, at *3 (E.D.N.Y. Apr. 7, 2015) (same). Accordingly, consular nonreviewability precludes jurisdiction over Plaintiffs' action.
For the foregoing reasons, Defendants' 12(b)(1) motion to dismiss is GRANTED and their 12(b)(6) motion is DENIED as moot. The Clerk of Court is directed to close the motions at docket number seven and to close this case.