Mirbaha v. Pompeo

513 F.Supp.3d 179

Moojan MIRBAHA et al., Plaintiffs,

v.Michael POMPEO et al., Defendants.

Civil Action No. 20-299 (TJK)

United States District Court, District of Columbia.

Signed January 19, 2021

Payam Yazdani, Yazdani Law, LLC, Columbus, OH, for Plaintiffs.

Kathleene A. Molen, William Chang, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

TIMOTHY J. KELLY, United States District Judge

Moojan Mirbaha and Nima Ebrahimi brought this action against various federal officials, seeking to compel the Government under the Administrative Procedure Act (APA) or the Mandamus Act to finish processing Ebrahimi's request for a waiver from Presidential Proclamation 9645, which otherwise bars him from receiving an immigration visa to join his fianceé in the United States. Before the Court is the Government's motion to dismiss for lack of subject matter jurisdiction and failure to state a claim. For the reasons explained below, the Court finds that Plaintiffs have established subject matter jurisdiction, but they have failed to state a claim. Thus, the Court will grant the motion and dismiss the case.

I. Background

The Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq. , governs admission of aliens into the United States. Admission normally requires a valid immigrant or nonimmigrant visa. See 8 U.S.C. §§ 1181, 1182, 1203. Once a visa application is "completed and executed before a consular officer," the "consular officer must issue the visa, refuse the visa ... [or] discontinue granting the visa." 22 C.F.R. § 42.81(a). Congress has delegated to the President broad authority to exclude aliens under the INA:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

8 U.S.C. § 1182(f).

On September 24, 2017, President Trump signed Proclamation No. 9645, 82 Fed. Reg. 45,161 (2017) ("Procl.") under this authority. The Proclamation placed entry restrictions on Iranian citizens, among others, because the Secretary of Homeland Security found that country's identity-management protocols and information-sharing practices relating to the screening of those seeking admission to the United States inadequate. Procl. § 2(b)(ii). Still, the Proclamation allows for case-by-case waivers for foreign nationals who show that (i) denying entry would cause undue hardship, (ii) entry would be in the national interest, and (iii) entry would not threaten the national security or public safety. Id. § 3(c)(i).

Ebrahimi is an Iranian national who resides in Tehran, Iran. ECF No. 1 ("Compl.") ¶ 6. He is engaged to be married to Mirbaha, a naturalized United States citizen who resides in Texas. Id. ¶ 13, 22. The couple met in 2006 while studying in Iran, but after completing her associate's degree, Mirbaha moved to the United States and the two lost touch. Id. ¶ 12. Mirbaha and Ebrahimi reconnected in 2016 and became engaged on September 20, 2017. Id. ¶¶ 19, 22. On December 4, 2017, Mirbaha filed an I-129F, Petition for Alien Fiancé, with the United States Citizenship and Immigration Services (USCIS), on behalf of Ebrahimi. Id. ¶ 23. Pursuant to 8 C.F.R. § 214.2(k), filing that document is necessary in order to obtain a K-1 Visa, which allows the fiancé of a U.S. citizen to travel to the United States.

On July 12, 2018, USCIS granted Ebrahimi the Petition for Alien Fiancé and ultimately transferred his visa application to the U.S. Embassy in Abu Dhabi for processing. Id. ¶ 24, 27. On October 21, 2018, Ebrahimi attended an immigrant visa interview at that U.S. Embassy. Id. ¶ 30, 31. In accordance with the Proclamation, the consular officer refused the immigrant visa application under INA § 212(f), 8 U.S.C. § 1182(f) because Ebrahimi is an Iranian national. ECF No. 6-1, Declaration of Chloe Dybdahl ("Dybdahl Decl.") ¶ 4. But Ebrahimi requested a waiver from the Proclamation and submitted documentation to support his claim that he met its criteria. Compl. ¶ 31. On November 26, 2018, the consular officer made a preliminary determination that Ebrahimi met two of the three requirements and is in "consultation with the Visa Office for interagency review" to determine whether Ebrahimi's entry "could pose a threat to national security or public safety." Dybdahl Decl. ¶ 5.

Ebrahimi's request for a waiver is "undergoing consideration" and his application for a visa "remains refused in accordance with the Proclamation." Id. ¶ 6. He and Mirbaha filed this action in February 2020, about sixteen months after he requested the waiver. They seek to compel the Government under the APA or the Mandamus Act to finish processing Ebrahimi's waiver, thereby clearing the way for him to be eligible for the immigration visa. Later that year, the Government moved to dismiss for lack of subject matter jurisdiction and failure to state a claim. See ECF No. 6 ("MTD Mem.").

II. Legal Standard

"When reviewing a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the Court ‘assumes the truth of all material factual allegations in the complaint and construes the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged." Bagherian v. Pompeo , 442 F. Supp. 3d 87, 91 (D.D.C. 2020) (quoting Am. Nat'l Ins. Co. v. FDIC , 642 F.3d 1137, 1139 (D.C. Cir. 2011) (alterations omitted)). The plaintiff bears the burden of establishing subject matter jurisdiction. Lujan v. Defs. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

To "survive a motion to dismiss for failure to state a claim under Rule 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.’ " Bagherian , 442 F. Supp. 3d at 92 (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). "A claim has 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." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. A court need not accept legal conclusions unsupported by factual allegations. Id. at 679, 129 S.Ct. 1937. In deciding a motion under Rule 12(b)(6), a court may consider the factual allegations in the complaint, documents attached as exhibits, or documents on which the plaintiff's complaint necessarily relies, even if the defendant is the one to produce the document through its motion to dismiss. Ward v. D.C. Dep't of Youth Rehab. Servs. , 768 F. Supp. 2d 117, 119 (D.D.C. 2011). Courts may also consider "matters of which we may take judicial notice." E.E.O.C. v. St. Francis Xavier Parochial Sch. , 117 F.3d 621, 624 (D.C. Cir. 1997).

III. Analysis

A. Subject Matter Jurisdiction

In arguing against subject matter jurisdiction here, the Government contends both that consular nonreviewability applies and that Ebrahimi's case is moot. Neither argument is persuasive.

1. The Consular Nonreviewability Doctrine

The Government first argues the doctrine of consular nonreviewability bars review of Plaintiffs’ claims. MTD Mem. at 7. Under that doctrine, "a consular official's decision to issue or withhold a visa is not subject to judicial review, at least unless Congress says otherwise." Saavedra Bruno v. Albright , 197 F.3d 1153, 1159 (D.C. Cir. 1999). This jurisdictional bar, however, "does not apply where the government has not made a final visa decision." P.K. v. Tillerson , 302 F. Supp. 3d 1, 11 (D.D.C. 2017).

The consular officer in this case, relying on the Proclamation, refused Ebrahimi's visa application. Dybdahl Decl. ¶ 4. In a typical case, the doctrine prevents judicial review of such a refusal. See Aboutalebi v. Dep't of State , No. 19-cv-2605, 2019 WL 6894046, at *5 (D.D.C. Dec. 18, 2019) (no subject matter jurisdiction to review denial of visa). But here, the consular officer then began the process of considering whether to grant a waiver. Dybdahl Decl. ¶¶ 4–6. And for their part, Plaintiffs represent they are not seeking to review the original decision. ECF No. 8 ("Opp'n") at 2. Thus, the question is whether the doctrine bars the Court from reviewing the claims Plaintiffs bring, the gravamen of which is that the Government has failed to timely process Ebrahimi's request for a waiver.

There remains some question about whether, under these circumstances, the original visa decision is final, and thus subject to the doctrine of consular non-reviewability.¹ But "[e]very judge in this District who has considered the ... question has held that the consular nonreviewability doctrine does not apply to the waiver process so long as the government has not made a final decision whether to grant or deny the waiver." Kangarloo v. Pompeo , 480 F.Supp.3d 134, 139 (D.D.C. 2020) (collecting cases). Thus, the consular nonreviewability doctrine does not bar Plaintiffs’ claims.

2. Mootness

The Government also argues that Plaintiffs’ claim to require his visa application to be adjudicated is moot because Ebrahimi's visa has already been denied. MTD Mem. at 6–7. But fundamentally, Plaintiffs do not seek to challenge the original decision to refuse Ebrahimi's visa, they seek to compel the processing of his waiver request, which would clear the way for his visa application to be granted. See Compl. ¶ 59. Ebrahimi's request for a waiver remains under consideration, even if his application remains refused at present. Id. ¶ 52; Dybdahl Decl. ¶ 6. Thus, events have not "so transpired that [a] decision will neither presently affect the...