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Abdu Saleh v. Tillerson

United States District Court, S.D. New York

February 26, 2018

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,
v.
REX TILLERSON[1] and UNITED STATES DEPARTMENT OF STATE, Defendants.

          OPINION & ORDER

          PAUL A. ENGELMAYER UNITED STATES DISTRICT JUDGE

         Ameera 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")[2]-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 the petition.

         I. Background[3]

         Saleh 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.[4] 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.

         In 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.

         On 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, 55, 67.

         On 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 Worksheet").

         On 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 ineligible.

         On May 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.

         On June 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 submissions.

         II. Legal Standards

         A. Rule 12(b)(1)

         A claim 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.

         "A 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.

         B. Rule 12(b)(6)

         To 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.

         III. Discussion

         A. The Doctrine of Consular Non-Reviewability

         The 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."[5] 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.

         This 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.

         B. Discussion

         1.Impact ...


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