United States District Court, S.D. New York
AMEERA MOHAMED ABDU SALEH, ZAKARIA SULTAN NAJIALSHAIF, ABDULMOTALEB SULTAN NAJI ALSHAIF, ASRAR SULTAN NAJI ALSHAIF, ABRAR SULTAN NAJI ALSHAIF, IBRAHIM SULTAN NAJI ALSHAIF, and LINA SULTAN NAJI ALSHAIF, Plaintiffs,
REX TILLERSON and UNITED STATES DEPARTMENT OF STATE, Defendants.
OPINION & ORDER
A. ENGELMAYER UNITED STATES DISTRICT JUDGE
Mohamed Abdu Saleh ("Saleh") and her
children-Zakaria Sultan Naji Alshaif, Abdulmotaleb Sultan
Naji Alshaif, Asrar Sultan Naji Alshaif, Abrar Sultan Naji
Alshaif, Ibrahim Sultan Naji Alshaif, and Lina Sultan Naji
Alshaif (together, "the Alshaifs" and, with Saleh,
"petitioners")-have petitioned this Court for a writ
of mandamus to compel the U.S. State Department and officials
therein (collectively, "the Government") to issue
Saleh an immigrant visa. The Alshaifs claim that the
Government's refusal of their mother's immigrant visa
violates their right to liberty under the Fifth
Amendment's Due Process Clause. Because the doctrine of
consular non-reviewability bars review, the Court dismisses
is a Yemeni citizen and homemaker. See Am. Pet.
¶ 30. In 2006, Saleh's husband, Sultan Naji Alshaif,
a U.S. Citizen, submitted a Form 1-130 petition to the State
Department, seeking a visa on behalf of Saleh. Id.
¶ 14. After Saleh's husband's death, the
1-130 petition was approved and transferred to the National
Visa Center, where it was assigned the case number
SAA2006762013. Id. ¶¶ 15-16.
November 2015, Saleh-having fled the civil war in Yemen for
Djibouti-was interviewed by U.S. officials at the U.S.
Embassy in Djibouti. Id. ¶ 18. At that
interview, Saleh received a notice from an Embassy official
stating that her "immigrant visa [was] approved, "
and that the Embassy would "now prepare your visa and
immigration packet." Id. ¶ 20. Saleh did
not, however, receive a visa and immigration packet.
Id. ¶ 21. Rather, Saleh's visa application
was listed as being in "administrative processing"
on the website of the Consular Electronic Application Center.
Id. As of late December 2016, Saleh had still not
received her visa. See Id. ¶¶ 23-26.
December 28, 2016, Saleh and the Alshaifs filed the initial
petition for a writ of mandamus in this case. Id.
¶ 26; see Dkt. 1 ("Pet."). The
petition sought to compel the State Department to issue Saleh
her immigration visa and to issue one of Saleh's sons,
Zakaria Alshaif, his U.S. passport. Pet. ¶¶ 29-30,
April 26, 2017, while this lawsuit was pending, Saleh's
counsel received a copy of a "Refusal Worksheet, "
on which an official in the U.S. Embassy in Djibouti
indicated that Saleh's immigration visa had been rejected
under Section 212(a)(3)(B) of the Immigration and Nationality
Act ("INA"). Am. Pet. ¶ 27; see Dkt.
29, Declaration of Brandon M. Waterman, Ex. 1 ("Refusal
April 27, 2017, after extensions of the Government's
deadline to respond, see Dkts. 13-16, the Government
submitted a letter asking the Court to dismiss the petition
as moot, on the ground that Zakaria Alshaif had received his
U.S. passport and that Saleh's application for an
immigration visa had been denied in a final decision by U.S.
embassy personnel in Djibouti. See Dkt. 17. The
Government attached the Refusal Worksheet, dated April 26,
2017, in which the Government had informed Saleh that her
visa application had been denied. See Refusal
Worksheet. Section 212(a)(3)(B), codified at 8 U.S.C. §
1182(a)(3)(B), provides that an alien is ineligible for a
visa if he or she has engaged in any of several
terrorism-related activities. The Refusal Worksheet does not
explain why the consular official believed Saleh was so
5, 2017, in response to the Court's order, Dkt. 18,
petitioners filed a response, seeking leave to file an
amended petition to challenge the Government's denial of
Saleh's visa application, Dkt. 19. On May 10, 2017, the
Court issued an order directing the Government to file a
formal motion to dismiss and setting a briefing schedule for
that motion. Dkt. 21. On May 22, 2017, the parties filed a
joint stipulation, providing that the Government would forgo
filing a motion to dismiss and that petitioners instead would
file an amended petition. Dkt. 22.
5, 2017, petitioners filed their First Amended Petition. Dkt.
23. It abandoned the challenges to the Government's
failure to issue a passport to Zakaria Alshaif, challenging
only the refusal of Saleh's immigrant visa application.
On July 10, 2017, the Government filed a motion to dismiss,
Dkt. 26, as well as a memorandum of law, Dkt. 27
("Gov't Br.") and declarations in support,
Dkts. 28-29. The Government seeks dismissal of the Amended
Petition for lack of jurisdiction, under Federal Rule of
Civil Procedure 12(b)(1), and for failure to state a claim,
under Rule 12(b)(6). See Gov't Br. at 9-10. On
July 28, 2017, petitioners filed a brief in opposition, Dkt.
31, and on August 4, 2017, the Government submitted its
reply, Dkt. 32, On January 23, 2018, this Court commissioned
supplemental briefing as to two questions related to the
doctrine of consular non-reviewability. Dkt. 33. After
seeking and receiving extensions, on February 7, 2018 the
Government submitted its brief, Dkt. 36 ("Gov't
Supp. Br."), and on February 16, 2018, the petitioners
submitted theirs, Dkt. 40 ("Pet. Supp. Br."). The
Court thanks counsel for their prompt and helpful
is "properly dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate
it." Makarova v. United States, 201 F.3d 110,
113 (2d Cir. 2000). "Pursuant to Rule 12(b)(1),
dismissal for lack of subject matter jurisdiction is
appropriate if the Court determines that it lacks the
constitutional or statutory power to adjudicate the
case." Lleshi v. Kerry, 127 F.Supp.3d 196, 199
(S.D.N.Y. 2015); see Makarova, 201 F.3d at 113.
plaintiff asserting subject matter jurisdiction has the
burden of proving by a preponderance of the evidence that
jurisdiction exists." Giammalteo v. Newton, 452
Fed.App'x. 24, 27 (2d Cir. 2011) (citing
Makarova, 201 F.3d at 113). In resolving a motion to
dismiss for lack of subject matter jurisdiction, "the
court must take all facts alleged in the complaint as true
and draw all reasonable inferences in favor of plaintiff,
" Natural Res. Def. Council v. Johnson, 461
F.3d 164, 171 (2d Cir. 2006) (internal quotation omitted),
but "jurisdiction must be shown affirmatively, and that
showing is not made by drawing from the pleadings inferences
favorable to the party asserting it, " Shipping Fin.
Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir.
1998); see also APWU v. Potter, 343 F.3d 619, 623
(2d Cir. 2003); Amidax Trading Group v. S. W.l.F. T.
SCRL, 671 F.3d 140, 145 (2d Cir. 2011). On such a
motion, a court may consider evidence outside the pleadings,
such as affidavits and exhibits. See Makarova, 201
F.3d at 113.
survive a motion to dismiss under Rule 12(b)(6), a complaint
must plead "enough facts to state a claim to relief that
is plausible on its face." BellAtl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim will only
have "facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Ashcroftv. Iqhal, 556 U.S. 662, 663
(2009). A complaint is properly dismissed, where, as a matter
of law, "the allegations in a complaint, however true,
could not raise a claim of entitlement to relief."
Twombly, 550 U.S. at 558. Accordingly, a district
court must accept as true all well-pleaded factual
allegations in the complaint, and draw all inferences in the
plaintiffs favor. ATSI Commc'ns, Inc. v. Shaar Fund,
Ltd., 493 F.3d 87, 98 (2d Cir. 2007). However, that
tenet "is inapplicable to legal conclusions."
Iqhal, 556 U.S. at 678. A pleading that offers only
"labels and conclusions" or "a formulaic
recitation of the elements of a cause of action will not
do." Twombly, 550 U.S. at 555.
The Doctrine of Consular Non-Reviewability
Government argues that this Court must dismiss this
action-whether for lack of jurisdiction or for failure to
state a claim-under the doctrine of consular
non-reviewability. That doctrine reflects 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). Although
"much could be said for the view, were we writing on a
clean slate, that the Due Process Clause qualifies the scope
of political discretion heretofore recognized as belonging to
Congress in regulating the entry and deportation of aliens,
" Galvan v. Press, 347 U.S. 522, 530-31 (1954)
(Frankfurter, J.), this Court-like the Supreme
Court, which has repeatedly declined to reconsider this
doctrine-does not write on a clean slate. See id.;
see also, e.g., Kleindienst v. Mandel, 408 U.S. 753,
767 (1972) (discussing the historical practice and noting,
"[w]e are not inclined in the present context to
reconsider this line of cases"). The Supreme Court
instead has repeatedly held that, "[t]he power of
[C]ongress 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, is settled by our
previous adjudications." Mandel, 408 U.S. at
766 (quoting Lem Moon Sing v. United States, 158
U.S. 538, 547 (1895)). It follows that a court presented with
a petition challenging the decision of a consular officer
"does not have jurisdiction to review a consular
official's decision, even if its foundation was
erroneous, arbitrary, or contrary to agency
regulations." Ngassam v. Chertoff, 590
F.Supp.2d 461, 466-67 (S.D.N.Y. 2008); see Mandel,
408 U.S. at 765-67.
broad prohibition on judicial review, however, is subject to
an exception: Courts have jurisdiction to review consular
decisions where challenged by U.S. citizens who assert
constitutional, rather than statutory, claims. Am. Acad,
of Religion, 573 F.3d at 125; see Mandel, 408
U.S. at 770; Kerry v. Din, 135 S.Ct. 2128, 2140
(2015) (Kennedy, J., concurring in the judgment).
But that exception itself is limited. On a citizen's
constitutional challenge to a consular decision, a court may
ask only whether the Government has provided a "facially
legitimate and bona fide reason" for its decision; a
court may neither "look behind the exercise of that
discretion, nor test it by balancing its justification
against the [constitutional] interests of those who
seek" review of a consular determination.
Mandel, 408 U.S. at 770; see Am. Acad, of
Religion, 573 F.3d at 125; Lleshi, 127
F.Supp.3d at 199-200. Where the consular official has
provided a facially legitimate and bona fide reason for his
or her decision, a court's inquiry is at its end.