Moralez v. Blinken

OPINION

Joseph H. Rodriguez, USDJ

Plaintiffs Maritza Moralez (“Moralez”) and her husband Juan Carlos Vallecillo Lopez (“Lopez”) (collectively “Plaintiffs”) ask the Court to review a consular official's decision to deny Lopez's application for an immigrant visa. However, as Respondents Merrick Garland, Anthony Blinken, Ian G. Brownlee, Tim Stater, and Gurbir S. Grewal (“Defendants” or “the Government”) argue in their motion to dismiss presently before the Court [Dkt. 9], the doctrine of consular nonreviewability precludes the Court from reviewing visa denials unless the denial

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violates the constitutional rights of a United States citizen. Because Plaintiffs have not pled a constitutional injury, the Court will grant Defendants' motion.

I. Background

Plaintiffs filed this lawsuit to challenge the denial of Lopez's immigration visa application. According to their Complaint, Lopez was born in Nicaragua and entered the United States without inspection or apprehension when he was eleven years old. [Compl. ¶ 15]. In May 2001, Lopez began a relationship with Moralez, a natural-born citizen of the United States, and the couple married on September 29, 2014. [Compl. ¶ 19]. They have five children together. [Compl. ¶¶ 6, 18].

After marrying, Plaintiffs pursued an immigration visa for Lopez based on Moralez's citizenship. On March 5, 2015, Moralez filed an I-130 Petition for Alien Relative to classify Lopez as an immediate relative spouse, which was approved. [Compl. ¶ 21]. On February 11, 2020, Lopez flew from the United States to Nicaragua to attend a consular interview at the United States Embassy in Managua. [Compl. ¶ 23]. The consular officer did not grant Lopez a visa at Lopez's first interview but required Lopez to return with his “migratory profile.” [Compl. ¶ 25]. A “migratory profile” is a “Nicaraguan document which denotes an individual's travel in and out of the country.” [Compl. ¶ 25]. Lopez obtained his migratory profile, which showed “various trips in and out of Nicaragua.” [Compl. ¶ 26]. According to Plaintiffs, the migratory profile was inaccurate because Lopez never left the United States after arriving at age eleven. [Compl. ¶¶ 26, 28]. Despite the inaccuracy, Lopez provided his migratory profile to the United States Embassy. [Compl. ¶ 27].

On March 5, 2021, Lopez returned to the United States Embassy in Nicaragua, where a consular officer provided Lopez with a letter rejecting his application (the “Rejection Letter”).

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[Compl. ¶ 30]. The Rejection Letter cited Section 212(a)(A)(3)(A)(II) of the Immigration and Nationality Act (“INA”) as the statutory basis for the rejection. [Compl. ¶ 30]. This subsection of the INA does not exist. Plaintiffs assume that the consular official intended to cite INA § 212(a)(3)(A)(ii), 8 U.S.C. § 1182(a)(3)(A)(ii), which states that “[a]ny alien who a consular officer or the Attorney General knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in . any other unlawful activity . is inadmissible.”^[1] [Compl. ¶ 30]. Plaintiffs are “dumbfounded” by this rejection, not only because Lopez never left the United States before his consular visit, but also because he “was never questioned about” any illegal activity. [Compl. 2, 31]. Plaintiffs further allege that Lopez's rejection letter “did not indicate Lopez was inadmissible due to his migratory profile” [Compl. ¶ 32], and that “[t]here is no connection between this ground of inadmissibility and Lopez's migratory profile.” [Compl. ¶ 33]. As a result of this denial, Lopez cannot return to the United States. [Compl. ¶ 34].

Plaintiffs filed their Complaint alleging that the denial of Lopez's immigrant visa violated Moralez's constitutional rights under the First, Fifth, Ninth, and Fourteenth Amendments, and the Administrative Procedures Act, 5 U.S.C. § 701 et seq. (“APA”), and that Lopez's visa was denied without a “bona fide and facially legitimate reason.” [Compl. 39, 41, 46]. After Plaintiffs filed their Complaint, the Government sent a revised refusal letter (the “Revised Letter”) which cites INA § 212(a)(3)(A)(ii), 8 U.S.C. § 1182(a)(3)(A)(II) as the statutory basis for denial. [Dkt. 9-1 at 6]. The Government then moved to dismiss the Complaint under Federal

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Rule of Civil Procedure 12(b)(6) for failure to state a claim. [Dkt. 9]. After Plaintiffs failed to file a timely response, the Court issued an order to show cause why the Court should not treat the Government's motion as unopposed and dismiss Plaintiffs' case. [Dkt. 11]. Plaintiffs then filed an opposition asking the Court to order the Government “to provide Plaintiffs a substantive explanation as to their amended determination of inadmissibility under INA § 212(a)(3)(A)(ii), which was cited without explanation.” [Dkt. 12 at 1].

II. Jurisdiction

The Court has federal question jurisdiction over this case under 28 U.S.C. § 1331.

III. Standard of Review

Federal Rule of Civil Procedure 12(b)(6) permits dismissal for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A complaint should be dismissed pursuant to Rule 12(b)(6) if the alleged facts, taken as true, fail to state a claim. Id. In general, only the allegations in the complaint, matters of public record, orders, and exhibits attached to the complaint, are taken into consideration when deciding a motion to dismiss under Rule 12(b)(6). See Chester Cnty. Intermediate Unit v. Pa. Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990). It is not necessary for the plaintiff to plead evidence. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977). The question before the Court is not whether the plaintiff will ultimately prevail. Watson v. Abington Twp., 478 F.3d 144, 150 (3d Cir. 2007). Instead, the Court simply asks whether the plaintiff has articulated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

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“A claim has facial plausibility^[2] when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “Where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.

The Court need not accept “unsupported conclusions and unwarranted inferences, ” Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (citation omitted), however, and “[l]egal conclusions made in the guise of factual allegations . . . are given no presumption of truthfulness.” Wyeth v. Ranbaxy Labs., Ltd., 448 F.Supp.2d 607, 609 (D.N.J. 2006) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)); see also Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005) (“[A] court need not credit either ‘bald assertions' or ‘legal conclusions' in a complaint when deciding a motion to dismiss.”)). Accord Iqbal, 556 U.S. at 678-80 (finding that pleadings that are no more than conclusions are not entitled to the assumption of truth).

Further, although “detailed factual allegations” are not necessary, “a plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do.” Twombly, 550 U.S. at 555 (internal citations omitted). See also Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”).

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Thus, a motion to dismiss should be granted unless the plaintiff's factual allegations are “enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true (even if doubtful in fact).” Twombly, 550 U.S. at 556 (internal citations omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘shown'-‘that the pleader is entitled to relief.'” Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).

IV. Analysis

“It is well-settled that the decision of a consular [official] to grant or deny a visa is not subject to judicial review.” Khachatryan v. United States, No. CV 17-07503-BRM-TJB, 2018 WL 4629622, at *4 (D.N.J. Sept. 27, 2018) (collecting cases). “This principle is known as the Doctrine of Consular Nonreviewability.” Id. (citing Am. Acad. of Religion v. Napolitano, 573 F.3d 115, 123 (2d Cir. 2009)). See also Onuchukwu v. Clinton, 408 Fed.Appx. 558, 560 (3d Cir. 2010) (“The widely applied doctrine of consular nonreviewability generally places a consular official's decision to issue or withhold a visa outside the scope of judicial review.” (citation omitted)). Under this doctrine, courts “cannot review a consular officer's decision even upon allegations that the consular officer acted on erroneous information . that the INA did not authorize the officer's decisions . or that the State Department...