Sharifi v. Blinken

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BAHMAN SHARIFI, and MAHIN AGHASEYEDHASHEMKADKHODA, Plaintiffs, v. ANTONY J. BLINKEN, in his official cap acity as Secretary of State, U.S. Department of State; RENA BITTER, in her official capacity as Assistant Secretary for Consular Affairs, U.S. Department of State; and JONATHAN WEBSTER, in his official capacity as Counsel General, U.S. Embassy, Abu Dhabi, U.S. Department of State, Defendants.

No. 1:23-cv-5112-OEM

United States District Court, E.D. New York

April 25, 2024

MEMORANDUM AND ORDER

ORELIA E. MERCHANT, UNITED STATES DISTRICT JUDGE:

Plaintiffs Bahman Sharifi (“Sharifi”) and Mahin Aghaseyedhashemkadkhoda (“Mahin”) (together with Sharifi, “Plaintiffs”) commenced this action on July 5, 2023, against defendants Antony J. Blinken, Rena Bitter, and Jonathan Webster (“Defendants” or the “Government”). Plaintiffs bring claims under the Mandamus Act and the Administrative Procedure Act (“APA”), seeking to: (1) compel the Government to adjudicate the petition for a visa that Sharifi, a United States citizen, filed for his mother, Mahin, a citizen and resident of Iran; and (2) challenge what Plaintiffs characterize as an unreasonable delay in the administrative processing of Mahin's visa application.

The Government has moved to dismiss this action for lack of subject matter jurisdiction and for failure to state a claim on the grounds that: (1) Plaintiffs' complaint is barred by the doctrine of consular nonreviewability; (2) Plaintiffs' claims are moot because Mahin's visa application has already been adjudicated; (3) Plaintiffs' mandamus act claim fails as a matter of law; and (4) that any other purported statutory bases for Plaintiffs' claims should be rejected. For the following reasons, the Government's motion to dismiss claims under Federal Rule of Civil Procedure 12(b)(1) is denied, and the Government's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is granted without prejudice. This action is dismissed in entirety without prejudice.

BACKGROUND

Sharifi a United States citizen, filed an I-130 Petition for Alien Relative on or about June 15, 2020, on behalf of his 70-year-old mother Mahin, a citizen and resident of Iran. Complaint, ECF 1 at 14. On February 13, 2023, Mahin was interviewed by the Consular Section of the U.S. Embassy in Abu Dhabi. Following the interview, “Mahin was informed that her application would have to undergo mandatory administrative processing” and was given “a temporary refusal letter under section 221(g) of the Immigration and Nationality Act which stated that her application was ‘refused under section 221(g) of the U.S. Immigration and Nationality Act [...] However, this refusal may be overcome once the missing documentation is submitted and/or administrative processing is completed.'” Id. The same day, the U.S Embassy “emailed Plaintiff Mahin a Form DS-5535 Supplemental Questions for Visa Applicants which requested that she submit 15 years of detailed history including addresses, employment, travel, and social media handles,” which she completed and submitted the next day. Id.

Plaintiffs allege that Mahin is “yet to receive a final decision on the pending visa application,” and that repeated inquiries as to the status of her application have yielded “template responses” that her “case is still pending administrative processing,” that “no documents are required at this time,” and that “this refusal can be overcome once the missing documentation and/or administrative processing is completed.” Id. at 16. Plaintiffs allege that this period of administrative processing “has placed a severe emotional and financial strain on the Plaintiffs” “[a]s a result of the unreasonable delay in adjudication.” Id. at 2.

LEGAL STANDARD

A. Federal Rule of Civil Procedure 12(b)(1)

“A case 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). “A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Id. “In considering a motion to dismiss for lack of subject matter jurisdiction, we accept as true all material factual allegations in the complaint. However, argumentative inferences favorable to the party asserting jurisdiction should not be drawn.” Atl. Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992) (cleaned up).

B. Federal Rule of Civil Procedure 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) provides for dismissal on the basis of “failure to state a claim upon which relief can be granted.” Fed. R. Civ. Pro. 12(b)(6). “To survive a motion to dismiss, Plaintiff's complaint must meet the Iqbal-Twombly pleading standard and ‘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)). In reviewing a motion to dismiss, this Court must “accept[] as true factual allegations made in the complaint, [...] drawing all reasonable inferences in favor of the plaintiffs.” Town of Babylon v. Fed. Hous. Fin. Agency, 699 F.3d 221, 227 (2d Cir. 2012).

DISCUSSION

A. Subject Matter Jurisdiction: Consular Nonreviewability

Defendants contend that this action is barred in entirety by the doctrine of consular nonreviewability, a long-standing restraint on the judiciary's power over consular actions. See Trump v. Hawaii, 585 U.S. 667, 702 (2018) (“For more than a century, this Court has recognized that the admission and exclusion of foreign nationals is a ‘fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control.' Because decisions in these matters may implicate ‘relations with foreign powers,' or involve ‘classifications defined in the light of changing political and economic circumstances,' such judgments ‘are frequently of a character more appropriate to either the Legislature or the Executive.'”). As the Second Circuit has instructed, “[i]t is settled that the judiciary will not interfere with the visa-issuing process” due to the doctrine of consular nonreviewability. Wan Shih Hsieh v. Kiley, 569 F.2d 1179, 1181 (2d Cir. 1978). “The Second Circuit has held that the doctrine of consular nonreviewability bars judicial review of decisions to deny, suspend or grant an immigration visa.” Ahmed v. Bitter, No. 23-CV-189, 2024 WL 22763, at *5 (E.D.N.Y. Jan. 2, 2024).

Plaintiffs and Defendants offer different interpretations of the bounds of this doctrine. Plaintiffs contend that the doctrine of consular nonreviewability does not bar their claims because it applies only to final consular actions, which they argue Mahin's refusal pending “administrative processing” does not constitute. In furtherance of this argument, Plaintiffs primarily rely on a number of cases from outside of this Circuit (see, e.g., Ghadami v. United States Dep't of Homeland Sec., No. CV 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.”); Vulupala v. Barr, 438 F.Supp.3d 93, 98 (D.D.C. 2020) (“As other courts have found, the focus should be on what is actually happening; even if the State Department chooses to characterize a section 221(g) notification as a ‘refusal,' an interim decision is not sufficiently final to warrant the application of the doctrine.”)), in addition to one case from the Southern District of New York (see Saleh v. Tillerson, 293 F.Supp.3d 419, 431 (S.D.N.Y. 2018) (“[A] visa that is in ‘administrative processing' cannot be said to have received final approval.”).

Defendants argue for a broader view of the doctrine of consular nonreviewability, one that would find Plaintiffs' claims within the broad sweep of the Supreme Court's instruction that though “the ‘plenary congressional power to make policies for exclusion of aliens has long been firmly established,' the ‘Congress has delegated [the] conditional exercise of this power to the Executive,' and it is ‘well settled' that such power is to be ‘enforced exclusively through executive officers, without judicial intervention.'” Memorandum of Law in Support of Defendants' Motion to Dismiss (“MOL”), ECF 14-1 at 9 (quoting Kleindienst v. Mandel, 408 U.S. 753, 766, 769-70 (1972)). Defendants highlight the Second Circuit's similarly broad instruction that “the judiciary will not interfere with the visa-issuing process,” Hsieh, 569 F.2d at 1181, and point to cases within this district where challenges to visa refusals for further administrative processing were dismissed on the grounds of consular nonreviewability. See, e.g., Morales v. Goldbeck, No. 12-CV-2350, 2013 WL 937825, at *1, *4 (E.D.N.Y. Mar. 11, 2013) (Finding that “the consular nonreviewability doctrine applies and this Court lacks jurisdiction to consider Plaintiff's claims” where plaintiff challenged a consular official's issuance of “a standard denial letter, stating that she did not fulfill the requirements for the visa pursuant to § 221(g)”).

Courts within this district have split regarding the applicability of the doctrine of consular nonreviewability to visa refusals for further administrative processing. See, e.g. Ahmed, 2024 WL 22763, at *6 (Agreeing with the District Court for the District of Columbia that “the doctrine of consular non-reviewability precludes review only of final visa determinations and does not apply to challenges regarding decisions that are not yet final. Cases in administrative processing have not...