Meyou v. U.S. Dep't of State

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EDMOND MEYOU, Plaintiff, v. U.S. DEPARTMENT OF STATE, et al., Defendants.

Civil Action No. 21-2806 (JDB)

United States District Court, District of Columbia

May 17, 2022

MEMORANDUM OPINION

JOHN D. BATES, UNITED STATES DISTRICT JUDGE

Plaintiff Edmond Meyou brings this lawsuit under the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq., and the Mandamus Act, 28 U.S.C. § 1361, to compel certain government officials and entities to adjudicate a visa application on behalf of his spouse Mahugnon Eklou. See Compl. in the Nature of Mandamus Arising from Defs.' Refusal to Adjudicate Pl.'s Immigrant Visa Appl. [ECF No. 1] (“Compl.”) ¶¶ 2, 8. Meyou also claims that defendants' failure to adjudicate the visa application has violated his due process rights under the Fifth Amendment. Id. ¶¶ 30-31. Defendants have moved to dismiss Meyou's complaint in its entirety. Mot. to Dismiss &amp Mem. in Supp. Thereof [ECF No. 6] (“Mot.”) at 1. Because the alleged delay in adjudicating the visa application is neither unreasonable nor unconstitutional, the Court will grant the motion and dismiss the case without prejudice.

Background^[1]

Edmond Meyou is a United States citizen. Compl. ¶ 1. Meyou's wife, Mahugnon Eklou, is currently residing in Benin, where she is a citizen. Id. ¶ 2. Meyou filed an I-130 visa petition on Eklou's behalf with United States Citizenship and Immigration Services (“USCIS”) in December 2018. Id. ¶ 14. USCIS approved the visa petition in August 2019. Id. ¶ 16. The case was then sent to the National Visa Center for processing. Id. ¶ 17. The National Visa Center assigned the case number COT2019752001, completed its processing, and sent the case to the U.S. consulate in Cotonou, Benin for an interview. Id. Eklou was interviewed in December 2019. Id. ¶ 18. Meyou alleges that since then, “the agency has refused to issue a decision on this case.” Id.

Meyou filed his complaint in October 2021. Compl. at 7. The complaint names as defendants the U.S. Department of State the U.S. Embassy in Benin, Secretary of State Antony Blinken, and U.S. Ambassador in Benin Patricia Mahoney. Id. at 1.^[2] Defendants moved to dismiss in January 2022. Mot. at 20. Plaintiff filed his opposition later that same month, see Pl.'s Mem. of P. & A. in Opp'n to Mot. [ECF No. 8] (“Opp'n”) at 17, and defendants filed their reply in February, Reply in Supp. of Mot. [ECF No. 9] (“Reply”) at 10.

Legal Standards

To survive a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The complaint “must provide ‘more than labels and conclusions'; although it ‘does not need detailed factual allegations,' the factual allegations ‘must be enough to raise a right to relief above the speculative level.'” Wash. All. of Tech. Workers v. U.S. Dep't of Homeland Sec., 892 F.3d 332, 343 (D.C. Cir. 2018) (quoting Twombly, 550 U.S. at 555). “In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily consider only ‘the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice.'” Wilson v. Wolf, Civ. A. No. 20-0100 (ABJ), 2021 WL 230136, at *4 (D.D.C. Jan. 22, 2021) (quoting Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C. 2002)).

Analysis

Defendants raise four arguments in their motion. Defendants first contend that the Secretary of State is not a proper defendant in this case because Meyou “does not seek to challenge a State Department policy, rule[], practice, or regulation [and instead] seeks to compel further action on the Beneficiary's visa application, which is the exclusive province of the consulate in” Benin. Mot. at 4; see also Baan Rao Thai Rest. v. Pompeo, 985 F.3d 1020, 1024 (D.C. Cir. 2021) (“The Immigration and Nationality Act . . . grants consular officers ‘exclusive authority to review applications for visas, precluding even the Secretary of State from controlling their determinations.'” (citation omitted)). Second, defendants argue that the consular nonreviewability doctrine requires dismissal of Meyou's complaint because the visa application at issue in this case is no longer pending and has been refused. Mot. at 5-8. Defendants also claim that, even if the consular nonreviewability doctrine did not apply, Meyou's complaint fails since the delay in processing the application is not unreasonable. Id. at 8-17. Finally defendants contest Meyou's assertion that the delay has violated his constitutional rights. Id. at 18-20. Because the Court ultimately agrees with defendants that the alleged delay in this case is not unreasonable and has not violated Meyou's constitutional rights, the Court will grant defendants' motion and need not consider whether the Secretary of State is a proper defendant here.

I. The Court Declines to Apply the Consular Nonreviewability Doctrine to the Facts of This Case

“The doctrine of consular nonreviewability prevents a federal court from second-guessing a United States consular officer's decision to issue or withhold a visa.” Baan Rao, 985 F.3d at 1023. “Decisions regarding the admission and exclusion of noncitizens ‘may implicate relations with foreign powers, or involve classifications defined in the light of changing political and economic circumstances' and, accordingly, ‘such judgments are frequently of a character more appropriate to either the Legislature or the Executive.'” Id. at 1024 (cleaned up) (quoting Trump v. Hawaii, 138 S.Ct. 2392, 2418-19 (2018)). While “claims otherwise barred by the consular nonreviewability doctrine are subject to judicial review in two narrow circumstances, ” id., when the doctrine applies, it generally requires courts to “hold[] that a consular official's decision to issue or withhold a visa is not subject to judicial review.” Saavedra Bruno v. Albright, 197 F.3d 1153, 1159 (D.C. Cir. 1999). The D.C. Circuit has recently clarified that a dismissal under the consular nonreviewability doctrine is a dismissal on the merits. Baan Rao, 985 F.3d at 1027.

The doctrine of consular nonreviewability “is not triggered until a consular officer has made a decision with respect to a particular visa application.” Nine Iraqi Allies Under Serious Threat Because of Their Faithful Serv. to the U.S. v. Kerry, 168 F.Supp.3d 268, 290 (D.D.C. 2016). Relying on out-of-circuit precedent and a tenuous reading of the D.C. Circuit's language in Baan Rao, defendants argue that the doctrine also applies before a consular officer makes a final decision-i.e., while an application is still pending. Mot. at 6 (citing Abdo v. Tillerson, Civ. A. No. 17-7519, 2019 WL 464819, at *3 (S.D.N.Y. Feb. 5, 2019)). But that has not been the understanding of courts in this District, either before or after the D.C. Circuit's January 2021 opinion in Baan Rao. See, e.g., Giliana v. Blinken, Case No. 21-cv-01416 (CRC), 2022 WL 910338, at *2 (D.D.C. Mar. 29, 2022); Carter v. U.S. Dep't of Homeland Sec., Case No. 1:21-cv-422 (RCL), 2021 WL 6062655, at *3 n.3 (D.D.C. Dec. 22, 2021); Polyzopoulos v. Garland, Civ. A. No. 20-0804 (CKK), 2021 WL 1405883, at *6 (D.D.C. Apr. 14, 2021); Bagherian v. Pompeo, 442 F.Supp.3d 87, 93 (D.D.C. 2020).

In any event, defendants argue that a consular officer has indeed made a final decision regarding Meyou's visa application as evidenced by the fact that the State Department's website lists the application as refused. Mot. at 7. That notice, however, leaves open the possibility that the application was not truly refused but rather temporarily refused to allow for administrative processing. See Visa Status Check, U.S. Dep't of State, https://ceac.state. gov/CEACStatTracker/Status.aspx (last updated Jan. 6, 2022) (stating application associated with COT2019752001 has been “[r]efused” but advising applicant that “[i]f you were informed by the consular officer that your case was refused for administrative processing, your case will remain refused while undergoing such processing”).^[3] As Meyou points out, “a so-called ‘refusal' letter for administrative processing ‘is not a final adjudication but a mandatory intermediate step.'” Opp'n at 10 (quoting Ibrahim v. U.S. Dept. of State, Civ. A. No. 19-610 (BAH), 2020 WL 1703892, at *5 (D.D.C. Apr. 8, 2020)); see also Ghadami v. U.S. Dep't of Homeland Sec., Civ. A. No. 19-00397 (ABJ), 2020 WL 1308376, at *5 (D.D.C. Mar. 19, 2020) (“[C]laims alleging unreasonable delay while a case remains suspended in ‘administrative processing' are not barred by the doctrine of consular nonreviewability.”). Reviewing Meyou's claims under the deferential standard appropriate on a motion to dismiss, see Ashcroft, 556 U.S. at 678, the Court finds that defendants have not demonstrated that the visa application received a final adjudication as required for the consular nonreviewability doctrine to apply, cf. Giliana, 2022 WL 910338, at *3 (holding consular nonreviewability doctrine did not apply to visa application that had been marked “refused” because plaintiff alleged refusal was not final). Having resolved that threshold challenge, the Court will turn to whether Meyou has articulated a plausible unreasonable delay claim.

II. The Delay in This Case Is Not Unreasonable

The APA “imposes a general but nondiscretionary duty upon an administrative agency to pass upon a matter presented to it ‘within a reasonable time.'” Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094 1099 (D.C. Cir. 2003) (quoting 5 U.S.C. § 555(b)). The APA also ...