Mueller v. Blinken

682 F.Supp.3d 528

Dyphinah Jebet MUELLER, et al., Plaintiffs, v. Antony J. BLINKEN, Secretary of the U.S. Department of State, Defendant.

Case No. 4:23-cv-24

United States District Court, E.D. Virginia, Newport News Division

Signed July 17, 2023

Jesse Matthew Bless, Pro Hac Vice, Bless Litigation, Georgetown, MA, Michael Leban, Leban & Associates, P.C., Virginia Beach, VA, for Plaintiffs.

Daniel Patrick Shean, U.S. Attorney's Office, Norfolk, VA, for Defendant.

MEMORANDUM OPINION & ORDER

Jamar K. Walker, United States District Judge

Before the Court is a Motion to Dismiss or, Alternatively, for Summary Judgment filed by the defendant, Antony J. Blinken, Secretary of the U.S. Department of State. ECF Nos. 10 (motion), 11 (memorandum). The motion argues that the Court lacks subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), that the complaint fails to state a claim upon which relief may be granted under Federal Rule of Civil Procedure 12(b)(6), and that, in the alternative, the Secretary is entitled to summary judgment under Federal Rule of Civil Procedure 56. ECF No. 10 at 1. For the following reasons, the Secretary's motion to dismiss is GRANTED.

I. BACKGROUND

Plaintiff Dyphinah Jebet Mueller ("Plaintiff Mueller") is a United States citizen and stepmother to Plaintiffs Edmon Kipyegon Ruto and Gideon Cheruiyot Ruto (collectively, "Plaintiffs Ruto"), both of whom are nationals and citizens of Kenya.¹ ECF No. 1 ¶¶ 1-2. The father of Plaintiffs Ruto is a naturalized citizen of the United States. Id. ¶ 4. Plaintiffs Ruto seek to join their father and stepmother in Virginia. To that end, Plaintiff Mueller filed an immediate-relative family-based visa petition, Form I-130, on behalf of Plaintiffs Ruto. Id. ¶ 5. The petition was approved by the United States Citizenship and Immigration Services on October 23, 2019. Id. The United States Embassy in Nairobi, Kenya confirmed receipt of the necessary documents in January 2022 upon their submission by Plaintiff Mueller, and in October 2022, the National Visa Center confirmed that it had approved all required documents. Id. ¶¶ 8, 40-41. Plaintiffs Ruto now await interviews at the United States Embassy in Nairobi, which have yet to be scheduled. Id. ¶¶ 10, 42. The Plaintiffs have "remained in Virginia separated from their children for years," which has caused them "anxiety and emotional distress." Id. ¶¶ 43-46. The plaintiffs bring this suit under the Administrative Procedure Act, 5 U.S.C. §§ 555(b) and 706(1), seeking to "compel agency action unlawfully withheld or unreasonably delayed."

II. LEGAL STANDARDS

A. Motions to Dismiss Under Rule 12(b)(1)

A motion to dismiss under Rule 12(b)(1) challenges the Court's subject-matter jurisdiction. Such a motion can proceed in two ways: a "factual challenge," where the movant asserts that the complaint's subject-matter jurisdiction allegations are untrue, and a "facial challenge," where the movant asserts that the complaint "does not allege facts that permit the exercise of federal subject-matter jurisdiction." Garrett v. Clarke, 552 F. Supp. 3d 539, 549 (E.D. Va. 2021). On a factual challenge, the court "may consider evidence outside the pleadings and decide disputed issues of fact." Id. On a facial challenge, "the plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration." Id. (quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)).

B. Motions to Dismiss Under Rule 12(b)(6)

"To survive a [Rule 12(b)(6)] motion to dismiss, 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In other words, a plaintiff must plead sufficient "factual content [that] allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true." Twombly, 550 U.S. at 545, 127 S.Ct. 1955. When considering a motion to dismiss, the court "must take all the factual allegations in the complaint as true," but the court is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986).

III. ANALYSIS

The Secretary makes three principal arguments in support of his motion to dismiss the complaint: (1) the Court lacks jurisdiction under the APA because "Plaintiffs cannot identify a clear, non-discretionary duty for Defendant to schedule any particular non-citizens for a visa interview," (2) the Court lacks subject matter jurisdiction based on the doctrine of consular non-reviewability, and (3) assuming that there is a clear, nondiscretionary duty to act, the plaintiffs fail to state a claim because the delay is not unreasonable as a matter of law. The Court agrees with the Secretary's first and third arguments and declines to reach the Secretary's second argument.

A. The Plaintiffs Have Not Identified a Clear, Non-Discretionary Duty to Act

To prevail on an APA claim to compel agency action that has been "unlawfully withheld or unreasonably delayed," 5 U.S.C. § 706(1), a plaintiff must show that the agency has failed "to take a discrete agency action that it is required to take." Gonzalez v. Cuccinelli, 985 F.3d 357, 366 (4th Cir. 2021) (quotation marks omitted). "[W]here an agency is not required to do something, [a court] cannot compel the agency to act—let alone act faster." Id. (emphasis in original).

To attempt to establish that the Department of State is compelled to act on the plaintiffs' visa request, the plaintiffs first point to 8 U.S.C. § 1202(b), which states:

(b) Other documentary evidence for immigrant visa Every alien applying for an immigrant visa shall present a valid unexpired passport or other suitable travel document, or document of identity and nationality, if such document is required under the regulations issued by the Secretary of State. The immigrant shall furnish to the consular officer with his application a copy of a certification by the appropriate police authorities stating what their records show concerning the immigrant; a certified copy of any existing prison record, military record, and record of his birth; and a certified copy of all other records or documents concerning him or his case which may be required by the consular officer. The copy of each document so furnished shall be permanently attached to the application and become a part thereof. In the event that the immigrant establishes to the satisfaction of the consular officer that any document or record required by this subsection is unobtainable, the consular officer may permit the immigrant to submit in lieu of such document or record other satisfactory evidence of the fact to which such document or record would, if obtainable, pertain. All immigrant visa applications shall be reviewed and adjudicated by a consular officer.

The plaintiffs rely on the last sentence of this provision, which states that "[a]ll immigrant visa applications shall be reviewed and adjudicated by a consular officer." Id.

That sentence does appear, at first blush, to establish a duty to act. But when the surrounding context is considered, that appearance falls apart. This provision "describes what documentation a visa applicant must provide and to whom they must submit the documentation." Babamuradova v. Blinken, 633 F.Supp.3d 1, 14 (D.D.C. 2022). That is plain enough from the title alone: "Other documentary evidence for immigrant visa." 8 U.S.C. § 1202(b). Thus, the last sentence is best read as merely "cabin[ing] the State Department's discretion as to who may review and adjudicate immigrant visa applications; it does not mandate that all applications actually be adjudicated." Id. at 15 (emphasis in original).

As other courts have observed, the ramifications of adopting the plaintiffs' interpretation of 8 U.S.C. § 1202(b) are extreme. This section "provides guidelines for all immigrant visa applicants." Babamuradova, 633 F.Supp.3d at 14 (emphasis in original). To hold that the government must review and adjudicate all visa applications "would truly be the proverbial elephant in a mousehole."² Zarei v. Blinken, No. 1:21-cv-2102, 2021 WL 9146060, at *1 (D.D.C. Sept. 30, 2021); see also Whitman v. Am. Trucking Associations, 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) ("Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.").

For the foregoing reasons, the Court finds that 8 U.S.C. § 1202(b) does not impose a specific, nondiscretionary duty on the Department of State to act on the plaintiffs' visa request. See Ali v. United States Dep't of State, No. 5:23-cv-32, 676 F.Supp.3d 460, 469-70 (E.D.N.C. June 8, 2023) (holding that 8 U.S.C. § 1202(b) does not impose a duty to act on a visa application); Babamuradova, 633 F.Supp.3d at 13-16 (same); Nasab v. Blinken, No. 1:22-cv-2084, 2022 WL 4473922, at *1 (D.D.C. Sept. 26, 2022) (same); Khamrabaeva v. Blinken, No. 22-cv-1219, 2022 WL 4446387, at *5 (D.D.C. Sept. 24, 2022) (same); Zarei, 2021 WL 9146060, at *1 (same).³

The plaintiffs point to several other statutes, rules, and regulations that the plaintiffs argue establish or "confirm[ ]" the Department of State's duty to act. None of these additional arguments carry the day. ECF No. 12 at 12. The plaintiffs first cite 8 U.S.C. § 1153(e), which describes the "[o]rder of consideration" for various types of visa applications. The plaintiffs argue the statute's instruction that "visas . . . shall be issued" creates a duty to act, but as with 8 U.S.C. § 1202(...